Asante JA

Author
Judgment date
Case number
ECW/CCJ/APP/ 22 of 2016
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
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Author
Judgment date
Case number
ECW/CCJ/APP/ 27 of 2019
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Ouattara JA
Bangra JA
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IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC

COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN AT ABUJA, IN NIGERIA 

SUIT NO: ECW/CCJ/APP/27/1

JUDGMENT NO: ECW/CCJ/JUD/01/20

 

BETWEEN:

1.   Ousainou Darboe

2.   Kemmesseng Jammeh

3.   Femi Peters

4.   Lamin Dibba

5.   Lamin Jatta

6.   Yaya Bah

7.   Baboucarr Camara

8.   Fakebba Colley

9.   Ismaila Ceesay

10. Mamodou Fatty

11. Dodou Ceesay

12. Samba Kinteh

13. Mamudu Manneh

14. Nfamara Kuyateh

15. Fanta Darboe-Jawara

16. Lamin Njie

17. Juguna Suso                                                                               -   APPLICANTS

18. Momodou L. K Sanneh

19. Yaya Jammeh

20. Masaneh Lalo Jawlan

21. Lamin Sonko

22. Modou Touray

23. Lansana Beyai

24. Lamin Marong

25. Alhagie Fatty

26. Nogoi Njie

27. Fatoumata Jawara

28. Fatou Camara

29. Kafu Bayo

30. Ebrima Jadama

31. Modou Ngum

32. United Democratic Party (UDP), The Gambia, (suing for itself and for the Estate of Ebrima Solo Sandeng (deceased)

AND

THE REPUBLIC OF THE GAMBIA          -           RESPONDENT

 

COMPOSTION OF THE COURT

Hon. Justice Edward Amoako Asante                             - Presiding

Hon. Justice Gberi-Be Ouattara                                      - Member

Hon. Justice Keikura Bangura                                        - Member

Assisted By:

Tony Anene-Maidoh – Chief Registrar


JUDGMENT


Parties

The Applicants are Citizens of the Republic of Gambia and Citizens of the Community who are ordinarily resident in the Republic of Gambia. The Respondent is the Republic of Gambia and a Member State of the ECOWAS Community.

S​ubject Matter of the Proceedings

The Applicant’s claim is for the violation of the human rights pursuant to Articles 4, 5, 6, 7, 10, 11 & 13 of the African Charter on Human and People’s Rights; violation of Articles 3, 4(1) and 25 (a) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa; violation of Article 1 (j) of the ECOWAS Protocol on Democracy and Good Governance.

S​ummary of Facts

The Applicants, 1st to 31st, aver that they are members of the 32nd Applicant who were arrested during peaceful protests on the 14th April, 2016 and were detained and severely tortured by the Respondent. That one of the detainees, Ebrima Solo Sandeng, died from torture inflicted by the Respondent, which the latter confirmed in a sworn deposition (Annexure B2) that the deceased died whilst in detention. The Applicants aver that the protests were disrupted by the police and were not allowed to disperse. That the police used more force than was necessary and randomly arrested persons in the vicinity of the protests.

The Applicants contend that the provisions of the Public Order Act of the Respondent are inconsistent with the Provisions of the African Charter on Human and Peoples Rights ( hereinafter ACHPR or African Charter) and other relevant Human Rights Instruments.

The Applicants aver further that some of the persons arrested were taken to the maximum security prison without remand warrant, whilst some were detained at the National Intelligence Agency Headquarters in Banjul. The detainees claimed that they were questioned and tortured and that the Respondent had asked whether they had knowledge of the 1st Applicant.

The Applicants claim that during detention seven detainees were hospitalized due to injuries sustained after various forms of torture and ill- treatment. That Ebrima Solo Sandeng died from said torture and ill- treatment and his remains were never handed over to his family.

The 32nd Applicant undertook a peaceful march on the 16th April, 2016 from the place of the 1st Applicant, demanding for the release of Ebrima Solo Sandeng. That during the protests the protesters locked hands in solidarity but were intercepted by Police Intervention Unit (hereinafter PIU) officers in riot gear who attacked them with batons, teargas and the butts of their gun. That they were thrown in trucks where the beating continued and they were detained at the PIU Headquarters until the 17th April, 2016 when they were transported to the maximum security prison without a remand warrant. That they were tortured and put in solitary confinement.

The Applicants aver that an application for Habeas Corpus was filed on behalf of the deceased on the 26th May, 2016. That the State filed two affidavits on the 13th and 22nd June, 2016 respectively confirming that the deceased had died in the process of arrest and detention and the primary cause of death was shock and the secondary cause was respiratory failure. The Applicants submitted Annexure B2 and B3 which is a Death Certificate that puts the time of death at 15th April, 2016 at 4:20 a.m. but that his remains were not handed to his family neither were they informed.

The Applicants further aver that they were all in bad physical conditions during detention and several of them had injuries on various parts of their bodies and some were limping or had difficulty moving. That they were sentenced to three (3) years in prison on the 20th July, 2016 in a trial that was devoid of fair hearing. That the 1st Applicant was denied his right to make a statement on his sentencing before he was sentenced.

The Applicants specifically contend that the Public Order Act (of the Respondent), by its Section 5, is an unjustifiable as its provisions restrict Rights under Article 7 of the ACHPR.

RELIEF​S SOUGHT BY THE APPLICANTS

1.  A DECLARATION that Section 5 of the Public Order Act of the Republic of the Gambia Chapter 22-01 is in violation of Article 11 of the African Charter on Human and People’s Rights.

2.  A DECLARATION that the arrest, detention, charge, purported trial and imprisonment of the Applicants for offences under the Public Order Act were in violation of Articles 4-7 and 11 of the ACHPR.

3.  A DECLARATION that the arrests and detention of the Applicants on the 14th April, 2016 and 16th April, 2016 were arbitrary, unlawful and in violation of Article 11 of the ACHPR.

4.  A DECLARATION that the torture and/or cruel, inhuman and degrading treatment of the Applicants by the Respondent and its agents violated Articles 4 and 5 of the ACHPR.

5.  A DECLARATION that the purported trial of the Applicants without giving them the opportunity to be defended by Counsel of their choice violated Articles 6 and 7 of the ACHPR.

6.  A DECLARATION that torture and/or cruel, inhuman and degrading treatment and abuse of the 27th and 28th Applicants, violated Articles 3, 4(1) and 25 (A) OF THE Protocol of the African Charter on Human and People’s Rights on the Rights of Women in Africa.

7.  A DECLARATION that the torture to death, and/or arbitrary and extra judicial killing of Ebrima Solo Sandeng (deceased) in circumstances admitted by the Respondent amounted to violation of Article 4 of African Charter on Human and People’s Right.

8.  A DECLARATION that the arrest, detention, trial and imprisonment of the Applicants have the consequences of denying the 32nd Applicant, as an opposition political party, from effectively participating in the general elections slated for later 2016 and denying the Applicants their right to participate in the elections as a result of their political opinion or affiliation, therefore violates Article 2 and 13 of the African Charter on Human and People’s Rights.

9.  A DECLARATION that the Respondent has failed to recognize, promote and protect the rights of the Applicants and to take measures to give effect to their rights as provided under Article 4, 5, 6, 7 and 11 of the African Charter on Human and People’s Rights.

10.       A DECLARATION that the Respondent has failed to recognize and promote principles of democracy and good governance as envisaged by the ECOWAS Protocol on Democracy and Good Governance.

11.       AN ORDER directing the Respondent to set up an independent panel of inquiry to look into events of the 14th and 16th April 2016, and also determine the persons responsible for the torture and ill- treatment of the Applicants and to provide credible measures taken to discipline, dismiss and prosecute the police officers involved.

12.       AN ORDER nullifying the purported charge, trial and imprisonment of the Applicants on the basis of the Public Order Act and immediate release of the Applicants from prison.

13.       AN AWARD of damages in the sum of 10 million Dalasi to each of the 1st to 31st Applicants for injuries sustained by the Applicants as a result of their torture and physical abuse by agents of the Respondent and their arrest, and unlawful detention.

14.       AN AWARD of compensation in the sum of 30 million Dalasi to the Estate of Ebrima Solo Sandeng (deceased) through the 32ND Applicant for unlawful deprivation of life, and associated loss to the relatives and family members.

15.       AN ORDER directing the Respondent to release the body of Ebrima Solo Sandeng (deceased) to his family and to the 32nd Applicant for proper burial in accordance with highly respected African values and culture.

16.       AN ORDER restraining the Respondent from harassing, arresting, detaining charging trying or otherwise intimidating any member of the 32nd Applicant in respect of this matter or any other matter, and to allow the members of the 32nd Applicant exercise their rights to participate, vote and elect their representatives and express political opinion as enshrined in Article 2 and 13 the African Charter on Human and People’s Rights.

17.       Any other order the Honorable Court considers necessary and which the justice of this case, including any order to ensure that the implementation of the judgement and orders made in this case are monitored.

The​ Respondent’s defense

The Respondent denies paragraph 1 of the Applicants’ claim and states that they were arrested pursuant to law after undertaking an unlawful public procession. That the 1st to 31st Applicants were not tortured but that the arrest and prosecution followed due process. That the procession was in defiance of an order of police and posed real and imminent danger to public peace.

The Respondent denies further, paragraph 2 of the Applicants’ claim and submits that the deceased, Ebrima Solo Sandeng, died from shock and respiratory failure.

The Respondent contends that the Public Order Act is not contrary to Article 11 of the African Charter on Human and People’s Rights. That the Applicants were arrested and detained because they violated the Public Order Act Cap 22 vol. 4 of the Gambia 2009.

The Respondent avers that the Applicants were duly arraigned in court but that the High Court ordered for their remand in custody pending trial. That they were allowed access to family, Counsel and medical care. That they were allowed Counsel of their choice until Counsel withdrew his representation and the Applicants continued their defense.

The Respondents aver that the Applicants were not subjected to torture or inhumane and degrading treatment but that the investigation was pursuant to the unlawful processions of 14th and 16th April 2016 and its attendant disorder.

The Respondent maintains that the treatment of the Applicants did not amount to torture and ill treatment, that 18th detainee and Ebrima Solo Sandeng were never subjected to torture particularly subjected to torture.

The Respondent states that the Applicants were not beaten or brutalized but that reasonable force was used to disperse the crowd.

The Respondent admits paragraph 16 of the Applicants claim and affirms the sentence of three years in prison but states that the Applicants were accorded fair hearing during the trial. The Respondent states that the Applicants have filed an Appeal in the Court of Appeal against their conviction.

The Respondent contends that the application of the Applicants lacks merit and is therefore not eligible for the reliefs sought. That the Court should dismiss the application for lack of merit.

The Applicants’ Response to the Respondents’ Statement of Defense

The Applicants’ maintained the facts averred in the initiating application. The Applicants specifically contend that they were denied Counsel, family and medical care and refer to the proceedings of THE STATE V. OUSAINOU DARBOE & ORS (2016) CRIMINAL CASE NO: HC/179/16/CR/059/AO.

The Applicants aver that the Counsel representing them (in the domestic case) was compelled to withdraw representation cited many instances leading to this including the fact that there was an atmosphere of intimidation in the way proceedings were conducted. The Applicants contend that the Court (domestic) ordered that they represent themselves when Counsel withdrew without giving the Applicants the opportunity to obtain new Counsel.

The Applicants contend that they were prosecuted and convicted because they associated with the 1st and 32nd Applicants.

The Applicants aver that they were remanded in prison before they were arraigned in court. The Applicants maintain that the records of proceedings will indicate apparent physical injuries on the 26th to 31st Applicants, that they were arraigned on the 4th May, 2016 which was two weeks after the arrest, allowing injuries to heal.

The Applicants submit that facts not challenged are deemed admitted; the Respondent’s admission as contained in their statement of defense proves the Applicants’ reliefs sought.

The Respondent responded to the Applicants reply and maintained their defense.

Ap​plicants’ Reply

The Applicants filed their reply to the Respondent’s defense on the 28th September, 2016. They maintained that the 21st to 31st Applicants were arrested on the 14th of April, 2016 alongside the late Ebrima Solo Sadeng. That the 1st Applicant then received information that the persons arrested were subjected to torture by the security officials of the Respondent and that Ebrima Solo Sadeng had died as a result injuries sustained from the torture. That the 26th-28th Applicants were seriously injured and on the brink of death.

That it was on this premise the 1st Applicant and others decided to walk towards the head-quarters of the Police intervention unit to demand the release of the deceased and other detainees but were indiscriminately attacked by the agents of the Respondent. That the attack was characterized by excessive force, tear gas, batons and gun butts which made it disorderly, as a result of which the 1st- 19th Applicants were injured. The Applicants added that the said injuries were apparent when the Applicants appeared before the Court in the Gambia and the record of proceedings of the 20th of April 2016 would indicate that the Court was informed of the injuries which was not denied by the Respondent. That the force used by the agents of the Respondent was disproportionate in the circumstance.

The Applicant’s further narrated that sometime on the 14th June, 2016 some 14 out of the 25 persons arrested on 14th April, 2016 were released when it became apparent that they were not members of the United Democratic Party (UDP). That the 1st -19th Applicants who were transferred to the Central Prison in Mile 2 from the Police intervention unit on the 17th April, were remanded without a remand warrant or Court order up until the 20th April when they were brought to Court. That six (6) out of the detainees were held in solitary confinement at the prison. The Applicants referred to the record of proceedings of the national court to confirm this position.

The Applicants’ reiterated that they were denied access to Counsel, family members and medical treatment. That even the Court to which they were charged ordered that they be granted access to Counsel and medical treatment but the Respondent failed to comply with the said order. The Applicants’ added that they had to attend Court with the same clothing they had since they were arrested and that on the 21st April, the Court had to make a second order urging compliance with its first order.

The Applicants states that their Counsel was compelled to withdraw its representation because the Court consistently refused all applications made on their behalf and that their case was transferred to another Court two hundred (200) kilometers away from the scene of the alleged offence which lacked jurisdiction to entertain the matter. The Applicants assert that they addressed a letter of complaint to the Chief Justice dated 24th May, 2016 in protest but to no avail. That the conduct of proceedings and atmosphere was characterized by intimidation especially with the presence of dozens of armed security personnel with weapons in and around the Court room. That even the Counsel was not permitted to consult with the Applicants in private and when the attention of the Court was drawn to intervene, it found nothing wrong with the actions of the security officers.

That without reference to the Applicants, the Court ordered that trial be continued and Applicants defend themselves without giving them the opportunity to engage another Counsel of their choice.

Th​e Respondent’s Reply

In its rejoinder, the Respondent denies subjecting the Applicants to any form of torture or ill treatment and denied that Ebrima Solo Sandeng died as a result of injuries sustained from torture.

The Respondent stated that on the issue of the Applicants’ Counsel’s withdrawal that the High Court of Gambia can sit at any designated place in the Gambia. That the security personnel in the Court premises were only deployed to maintain order in the face of the unruly conduct of the Applicants’ supporters and to ensure a hitch free proceeding. They added that the Counsel had unfettered access to the Applicants throughout the course of trial both at the prison and in the Court room.

The Respondent avers that the arrest and prosecution of the Applicants had no political consideration and profiling but was necessitated by their participation in an unlawful procession and further stated that the death of Ebrima is not a justifiable grounds for the Applicants to have embarked on an unlawful procession.

The Respondent maintained that the investigation resulted into the death of Ebrima Solo and denied the allegation of undue delay in bringing the Applicants to Court after being arrested. They submitted that the Applicants were arraigned within seventy-two (72) hours of arrest and that the Applicants have not established a prima facie violation of Article 11 of the African Charter.

In conclusion, the Respondent submits that in seeking an order to nullify the purported charge, trial and imprisonment of the Applicants on the basis of the Public Order Act and subsequently direct an immediate release of the Applicants from prison, will amount to seeking to impose the powers of the Court to review the decision of the High Court of Gambia for which this Court lacks the competence to do.

ISSUES FOR DETERMINATION

·   WHETHER THE COURT HAS THE COMPETENCE TO HEAR AND DETERMINE THE CLAIM BROUGHT BY THE APPLICANTS.

·   IF THE ANSWER IS IN THE AFFIRMATIVE, THE COURT MUST DETERMINE WHETHER THE APPLICANTS HAVE ESTABLISHED A VIOLATION OF THEIR RIGHTS AS CLAIMED.

·   WHETHER OR NOT THE PROVISIONS OF SECTION 5 OF THE PUBLIC ORDER ACT OF THE GAMBIA CONTRAVENES THE PROVISIONS OF ARTICLE 11 OF THE AFRICAN CHARTER.

·   WHETHER THIS COURT HAS COMPETENCE TO DECLARE THE JUDGEMENTS OF NATIONAL COURT NULL AND VOID.

·   WHETHER THE 32ND APPLICANT HAS CAPACITY TO INITIATE THIS APPLICATION ON BEHALF OF EBRIMA SOLO SANDENG (DECEASED).

ISS​UE 1: WHETHER THE COURT HAS THE COMPETENCE TO HEAR AND DETERMINE THE CLAIM BROUGHT BY THE APPLICANTS.

Competence is a matter of statutory provision. The Court by itself cannot assume jurisdiction to adjudicate on any matter except by clear mandate conferred on it by statutory provisions. Jurisdiction therefore is the mandate and power conferred on the Court to adjudicate on any matter that is brought before it. In this instance, the jurisdiction of this Court is provided for by Article 9 of the Supplementary Protocol (A/SP.1/01/05 Amending Protocol (A/P1/7/91)) and the Court recognizes that the basis of the Applicants claim is specifically anchored to the Provisions of Article 9 (4) of the said Supplementary Protocol Amending the said Protocol of the Court to wit:

“T​he Court has jurisdiction to determine cases of violation of human rights that occur in the Member States.”

Article 10 (d) specifically grants access to the Court to individuals wo are seeking relief for violation of their Human Rights and it further provided the conditions precedent :

“Individuals on application for relief for violation of their human rights; the submission of application for which shall:

i.          Not be anonymous; nor

ii.          Be made whilst the same matter has been instituted before another International Court for adjudication.”

The Court has held severally that a mere allegation of a violation of human rights in the territory of a Member State is sufficient, prima facie, to justify its jurisdiction. In the case of MOUSSA LEO KEITA V. THE REPUBLIC OF MALI (2007) ECW/CCJ/JUD/03/07, the Court held that it has a competence to adjudicate matters involving the violation of human rights within its Member State. Therefore the threshold is simply that the application should contain an allegation of a violation for it to be deemed admissible: See SERAP V. FEDERAL REPUBLIC OF NIGERIA & 4 ORS (2014) ECW/CCJ/JUD/16/14.

The Applicants have contended that the Respondent’s act of arrest, detention and prosecution whilst exercising their fundamental human rights, especially their right to peaceful assembly, fair trial and the right to life is in violation of their right. Further, that the alleged torture, inhuman and degrading treatment meted out on them whilst in custody of the Respondent is an affront to their dignity. Furthermore, the Applicants also challenge the alleged death of one of them (Ebrima Solo Sadeng) in custody of the Respondents as a violation of his right to life.

Subject to the above averments, the Applicants relied on the provisions of Articles 4, 5, 6, 7, 10, 11 & 13 of the African Charter on Human and People’s Rights, Articles 3, 4(1) And 25 (a) of The Protocol to The African Charter On Human and People’s Rights on the Rights of Women in Africa and Article 1 (j) of the ECOWAS Protocol on Democracy and Good Governance. In relying on the said provisions, the Applicants are in tandem with the ratio in the case of KAREEM MEISSA WADE V. REPUBLIC OF SENEGAL (2019) ECW/CCJ/JUD/13/19, at pg. 259 Para. 95 (3), where the Court held that: “simply invoking human rights violation in a case suffices to establish the jurisdiction of the Court over that case.” See also BAKARE SARRE V MALI (2011) ECW/CCJ/JUD/03/11 and Dr. GEORGE S. BOLEY V. THE REPUBLIC OF LIBERIA & 3 ORS. (2019) ECW/CCJ/JUD/24/19.

In line with the above jurisprudence of the Court vis-à-vis the facts of the present application, the Court holds itself competent to hear and determine the matter.

ISSUE 2: IF THE ANSWER IS IN THE AFFIRMATIVE, THE COURT MUST DETERMINE WHETHER THE APPLICANTS HAVE ESTABLISHED A VIOLATION OF THEIR RIGHTS AS CLAIMED.

The Applicants in their application have contended that the Respondent’s act of arrest, detention and prosecution whilst exercising their fundamental human rights, especially their right to peaceful assembly, fair trial and the right to life is in violation of their right. Further, that the alleged torture, inhuman and degrading treatment meted out on them whilst in custody of the Respondent is an affront to their dignity. Furthermore, the Applicants also challenge the alleged death of one of them (Ebrima Solo Sadeng) in custody of the Respondent as a violation of his right to life. Subject to the above averments, the Applicants relied on the provisions of Articles 4, 5, 6, 7, 10, 11 & 13 of the African Charter on Human and People’s Rights, Articles 3, 4(1) And 25 (a) of The Protocol to The African Charter On Human and People’s Rights on the Rights of Women in Africa and Article 1 (j)  of the ECOWAS Protocol on Democracy and Good Governance.

To determine the series of Human Right violations alleged by the Applicants, the Court will now outline the series of Human Right violations alleged, examine and assess the facts and arguments as canvassed by the Applicants in the pursuit of proving their case before it. The same will be done according to the thematic issues raised in the Application hereunder.

i.     ARREST AND DETENTION

The Applicants aver that in the exercise of their right to assembly, they embarked on a peaceful protest on the 14th and 16th of April 2016 respectively. In the course of the protest, they were arrested and detained by agents of the Respondent on grounds that they failed to produce a license permitting them to hold the said protest amongst others.

The Respondent, on the other hand, contended that the interference with the Applicants’ rights to liberty was executed within the context of the provisions of Article 6 of the African Charter. That the Applicants were arrested and detained for embarking on an unlawful and violent procession which disrupted public peace and constituted an imminent threat. That they behaved in an unruly manner and failed to comply with a dispersal order, throwing missiles at the Police and thereby causing the law enforcement agency to resort to force within the confines of the law. The Applicants maintained that the protest was peaceful as they were unarmed, walking together with locked arms and chanting “release Ebrima Solo Sadeng dead or alive”. They further contend that their detention was prolonged and in contravention of the Gambian Constitution which provides a maximum period of seventy-two (72) hours before being charged to Court. They argued specifically that the detention of the 26th-31st Applicants lasted more than two weeks.

In rebutting the claim of prolonged detention, the Respondent relied on the provisions of Section 32 of the Interpretation Act of the Gambia to justify the extra days. The Applicants however challenged the applicability of the said provisions of the Constitution. It must be noted that right to liberty and assembly are rights to which the state as a signatory is under obligation to protect though not absolute and the exercise of which is regulated by law. This means simply that such rights can be derogated from within the frame work of the law. It is therefore important to examine the provisions of Article 6 of the African Charter on Human and People’s Rights provides:

“Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”

The Court notes that the Gambian Criminal Procedure Code was drafted having in mind the desire to provide absolute protection for the sovereignty of the State. The Respondent’s defense is that the provisions of the Criminal Procedure Code, Article 5 of the Public Order Act, as well as Section 19(1) of the Constitution of the Gambia are in tandem with the provision of Article 6 of the African Charter on Human and People’s Rights (ACHPR). They also maintained that the detention was in compliance with a valid order of Court following the due process of the law. Section 15 of the Criminal Procedure Code Cap 11 Vol 3 Laws of The Gambia, Revised Edition 2009, permits a police officer without a warrant to arrest any person whom he suspects on reasonable grounds of having committed a cognizable offence, any person who commits a breach of peace in his presence and any person who obstructs a police officer in the execution of his duty. They further relied on Section 73 of the Criminal Code Cap 10 Vol. 3 Revised Laws of The Gambia 2009 which provides:

“If on the expiration of a reasonable time after the proclamation is made, or after the making of the proclamation has been prevented by force, twelve or more persons continue riotously assembled together, a person authorized to make proclamation, or a police officer, or any other person acting in aid of the person or police officer, may do all things necessary for dispersing the persons so continuing assembled, or for apprehending them or any of them, and, if a person makes resistance, may use all such force as is reasonably necessary for overcoming the resistance, and shall not be liable in any criminal or civil proceeding for having , by the use of such force, caused harm or death to any person”.

Consequently, the Respondent submits that the interference with or deprivation of liberty of the Applicants in pursuance of and in accordance with the legal principles in the Gambia, are well within the permissible exceptions enshrined in Article 6 of the African Charter and therefore does not constitute violations of the applicant’s rights to liberty within the meaning of the said Article.

The Court is mindful of the fact that an arrest and detention premised on lawful grounds cannot be seen as a violation of the guaranteed right to liberty. See BARTHELEMY DIAS V. REPUBLIC OF SENEGAL (2012) ECW/CCJ/JUG/05/12 and ALHAJI HAMANI TIDJANI V. FEDERAL REPUBLIC OF NIGERIA AND 4 ORS. (2007) ECW/CCJ/JUD/04/07.

In determining the legality of the alleged arrest and detention the Court will consider whether or not the alleged unlawful and violent procession resulted in the disruption of public peace as the Respondent would want this Honorable Court to believe. Whether the Respondent has shown any credible evidence documentary or oral before the Court to establish the Applicants unruly behavior and subsequent failure to comply with dispersal orders which has resulted to breach of Public Oder, threat to Public safety as the Respondent averred in his defense.

It is trite law that the burden of proof rests on the person making the allegation to ascertain the truth of his assertion. Such a person can succeed or fail on the strength of his evidence. In the case of FEMI FALANA & ANOR V. REPUBLIC OF BENIN & 2 ORS (2012) ECW/CCJ/JUD/02/12, this Court held that “as always, that the onus of proof is on a party who asserts a fact and who will fail if that fact fails to attain that standard of proof that will persuade the court to believe the statement of the claim”. Also, in SIKIRU ALADE V. FEDERAL REPUBLIC OF NIGERIA (2012) ECW/CCJ/JUD/10/12 the Court found that every material allegation of claim must be justified with credible evidence and the defense should also sufficiently satisfy every defense and put forward what will rebut the claim or take the risk of putting nothing at all if the claim by their estimation is weak and unproven. In the instance case, it is the expectation of the Court that the Respondent would have tendered hospital report of treatment of agents of the Respondent as a result of injuries sustained from the missiles alleged to have been thrown by the Applicants and even pictures of destructions alleged to have been done by the unruly behavior of the Applicants.

The Court notes that Article 11 of the African Charter provides that:

“Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the Safety, heath, ethics and rights and freedom of others”.

Section 5 (5) of the Public Order Act of the Laws of the Gambia on the other hand provides that going on any procession without a license or one in which a license has been issued and the terms of the said license is violated constitutes a cognizable offence” for which an arrest can be made without a warrant.

The Respondent has made a blanket denial to Applicants allegation therefore, it is imperative on the part of the Applicants to prove their allegation by way of credible evidence that the act of the Respondent amounted to a violation of their Rights to peaceful possession. However, the Applicants failed to tender evidence to establish proof that the protest was with the approval of the Inspector General of Police of the Gambian Police Force and did not lead evidence either by means of oral or documentary in form of pictures or video to establish that indeed the acts of the Applicants was peaceful. The Applicants therefore failed to show that their act was lawful and peaceful.

In light of the above and in the absence of such evidence to rationalize the alleged acts of the Respondent, the Court finds that though the protest was a peaceful protest it was nevertheless without license and therefore illegal. That the arrest that followed was not arbitrary because it was done pursuant to the Gambian Law. However, the detention that followed was nonetheless arbitrary as the period of detention went beyond the limit permitted by the law of the Gambia before the Applicants were brought to Court.

ii.     TORTURE, INHUMAN AND DEGRADING TREATMENT.

The Applicants alleged that they were subjected to torture, inhuman and degrading treatment by agents of the Respondent from the time of arrest to the period in detention. The Respondent however denied subjecting them to any form of torture, inhuman or degrading treatment. The Respondents relied on the definition of the United Nations Convention against torture to wit:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain arising from, inherent in or incidental to lawful sanctions”.

The Respondent went on to state that for an act to constitute a violation of Article 5 of the African Charter, the following three elements must be proved beyond reasonable doubt:

a.  The infliction of severe pain or suffering;

b.  By or with the consent or acquiesce of the state authorities;

c.  For a specific purpose, such as giving information, punishment or intimidation.

They submitted that none of the above elements have been proven by the Applicants.

The Applicants argued that the physical injuries suffered by the 1st to 19th Applicants were apparent when they were brought before the Court on the 20th April, 2016. That the record of proceedings will show that the Court was informed of the injuries of which the Respondent did not deny at that time. See proceedings of 20th and 21st April, 2016.

The Court notes that Article 5 of the African Charter provides:

“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

The depositions made on oath by the Applicants contain consistent allegations of acts of torture, inhuman and degrading treatment meted on them by the officers of the PIU unit, to wit agents of the Respondent.

The 1st Applicant deposed that he was slapped by an officer. He alongside the 4th and 5th Applicants were assaulted which resulted in profuse bleeding. That they were made to seat on the bare floor for forty-five (45) minutes and were not given medical attention. However, the Inspector General of Police (IGP) came and told them that they would be taken to the clinic. The 1st Applicant further averred that he sustained a wound on his head which was so deep that it was sutured. He also alleged that they were kept in solitary confinement.

The 3rd Applicant alleged being assaulted by the PIU officers who hit him with their batons and kicked him with their boots on his left hip where he once had a fracture. That he was forcefully thrown into the truck. He however affirmed that those who were injured were given medical attention the next day. He also stated that they were taken to mile 2 prison where photographs of them were taken. While some were escorted to solitary confinement without access to a lawyer. That the cell he was taken to was two (2) meters wide with a small door, with no matrass and full of cockroaches, rats, and mosquitoes. That he stayed there for three (3) days after which he was moved to a different cell.

The 4th Applicant affirmed that he was hit on the back twice by a PIU officer and on turning to see who it was, alas, he was hit on his face (forehead) and his chest. That he had eight (8) stitches on the wound on his forehead. That they were taken to the PIU camp where they were detained before being transferred to Mile 2 prison.

The 15th Applicant who was a passerby at the time of the protest was also arrested, dragged and slapped by the PIU officers. She alleged that they kept on beating her from the time she was arrested to the time they arrived the PIU camp. That on reaching the camp, the officers pushed her off the truck with so much force that she landed on her feet hence her inability to walk properly. That they were taken to Mile 2 prison on Sunday the 17th of April.

The 17th Applicant on the other hand averred that he was arrested but not beaten. He was only asked who he will vote for during the election.

The 31st Applicant alleged that the officers put a black mask round his face and tied his hands and legs with ropes which was used to drag him on the floor into a dark room. That he was beaten mercilessly as a result of which he was wounded on his arms and thighs. That the NIA brought a doctor who gave them certain medicines and rubbed Chinese balm on their wounds. That they wore their clothes for nine (9) days until they began to smell. He further averred that the NIA officers brought kaftan, a pair of jeans and shirt for him to wear and told him that the kaftan is to be worn on the day they were appearing in Court. That the condition in Mile 2 prison was very bad and they were given small amounts of sub-standard food. That they were in detention from the 27th April to 4th May, 2016 when they were finally taken to Court for the first time.

The 26th Applicant was also beaten by the PIU officers, carried into the truck and handcuffed. They tied a rope around her legs, pulled it tight as a result of which she fell off, bent and broke her little left finger which was swollen and was left without medical attention. She averred that the officers tore her clothes and left her naked except for a short wrapper she wore underneath her cloth. That she was taken to another room where she was told that she will cry until her mouth tears up and no one will hear her. That she was given another round of merciless beating with hose pipes and batons for about an hour leaving her whole body bloody and damaged while the officers continued to pour water on her. That they slapped her on both ears simultaneously and kept asking her questions as to why she is with the opposition party. That they later called a medical doctor to check on her and other detainees.

The 27th Applicant, who is the youth wing President of the party, was on her way back from school when she was chased, caught up and thrown into the truck with the officers stamping on her with their feet. When she demanded to know why she was arrested, one of the officers slapped her. That they used her head tie to cover her head, face and mouth and also asked questions about her political affiliation. That they took her to a dark room, undressed her and beat her seriously until she collapsed. That they called about 10 fat men to rape her but she insisted she has not known any man before except her husband and it will be better for them to kill her. When they heard this, they stopped. She further averred that she was asked to make a statement under duress. That they poured water on her and threw her on the floor without clothes. She had to be assisted on a wheel chair to use the bathroom by two women. That she collapsed and was taken to the clinic in NIA. She started urinating blood and was at the clinic for about thirteen (13) days. She was also bleeding all over. That afterwards, the officers brought very good medicines to heal their wounds before they were taken to Court. Subsequently, they were taken to Mile 2 prison with poor food, no access to medicine and family visit. That the Doctors in NIA said they should bath with hot water because of the injury, however, they had no access to hot water in Mile 2 prison.

The 28th Applicant alleged that she was put in a truck, handcuffed and taken to Mile 2 prison. That one of the officers kicked her on the back and used her veil to cover her face. That she was asked to lie down on a table, open her mouth and stick out her tongue. She further alleged that the officers used vulgar languages on her while being beaten and slapped. She was left with a swollen face and her ears burst to the extent that she lost consciousness. That they later kept on pouring water on her until she regained her consciousness. That she lost consciousness a second time and sustained injuries all over her body. That the beatings were severe and that she was urinating blood, after which she was carried on a wheel chair to the NIA clinic.

The 30th Applicant, asserted that he was on his way from a business transaction when he was arrested, handcuffed and put in a truck. That the handcuff injured him on the wrist. That the officers took his statement and put it in writing but was not given the opportunity to read the statement before being asked to sign. His face was covered with a black cloth and he was taken to another room where he was beaten up, placed on a table and poured water on him. That the beating was severe and he was in much pain.

The 5th Applicant who is the vice chairman of the UDP party was attacked by the officers with batons and guns and he sustained injuries on the head. That he was kept in solitary confinement and released only once a day to bath. He also stated that the food given to him in detention was extremely terrible.

The Respondent in response negated all the allegations above and reiterated that the Applicants were not treated inhumanly without more. By its very nature, documents made under oath are reflective of the true position in a matter. It is well-settled that averments in supporting affidavits are evidence upon which the Court may, in appropriate case act.

In the case of MAGNUSSON V. KOIKI (1993) 9 NWLR (PT. 317) 287 SC, the Supreme Court observed that affidavit evidence upon which applications or motions are largely decided are not the same thing as pleadings in a civil suit, which are written statements (and not evidence generally) of facts relied upon by a party to establish his case or answer to his opponent's case.

In the instant case, in their deposition on oath, Applicants presented a prima facie substantiation of an interference with their rights and arguable basis for violation. Where evidence is produced that suggests the victim suffered ill-treatment while in the custody of State authorities, the burden may shift to the State to produce evidence to show that the State was not responsible as was held in the case of MR. NIAN DIALLO V (2019) ECW/CCJ/JUD/14/19

In this instance, proof is what allows one to establish the value of truth or falsity, regarding a statement or a fact that is judicially relevant. To this end, it is submitted that mere averments in pleadings does not amount to proof. In case of OBIOMA C. O. OGUKWE V REPUBLIC OF GHANA (2016) ECW/CCJ/JUD/20/16 Para.8 @ page16 this Court held that:

Generally, the burden of proof rests on he who alleges. Where however that person makes a prima facie case, he carries the benefit of presumption and the obligation to prove then shifts to the other party who has the burden of presenting evidence to refute that presumption”.

Under the principle of proof, where the Applicants make depositions on torture, inhuman and degrading treatment, the Respondent needs to go beyond mere denial to adduce evidence to show that the Applicants were treated with respect and dignity. No single person was brought before the Court to testify in this regard neither was there any form of documentary evidence to persuade the Court to reason with the Respondent as to the falsity of the Applicants claims. In the absence of convincing evidence, the Court is again inclined to believe that the allegations of the Applicants in this regard were true. Article 5 of the African Charter promotes respect for dignity and expressly prohibits all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment.

In the case of GABRIEL INYANG V. REPUBLIC OF NIGERIA (2018) ECW/CCJ/JUD/20/18 the Court relying on the decision in M.S.S. v. Belgium and Greece [GC], no. 30696 para ECHR 2011 stated thus:

“Treatment is considered to be “degrading” within the meaning of Article 3 of European convention which is pari materia to the provisions of Article 5 of the ACHPR, when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance

The court went further to state that in order for treatment to be “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment.”

The Court in the case of FEDERATION OF AFRICAN JOURNALISTS V. REPUBLIC OF THE GAMBIA (2018) ECW/CCJ/JUD/04/18 relied on the decision in Loayza Tamayo V. Peru judgment of September 17, 1997. Series C No. 33, para 57, where the Inter-American Court held that: “the violation of the right to physical and psychological integrity of persons is a category of violation that has several gradation and embraces treatment ranging from torture to other types of humiliating or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by endogenous and exogenous factors which must be proven in each specific situation. The European Court of Human right has declared that, even in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. The degrading aspect is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical moral resistance”.

The act of slapping, kicking, masking, blind folding, being stripped naked, handcuffing, unconsciousness/fainting, confined in a dark room and inadequate feeding come with their physical and psychological effects. A slap on its own amounts to humiliation with a considerable impact on the person receiving it in terms of his identity, sight, speech and hearing as the face is the center of his senses. This is capable of arousing in the victim a feeling of arbitrary treatment, injustice and powerlessness. In the case of BOUYID V. BELGIUM (2015) Application no. 23380/09 ECHR, the European Court of Human Rights found that persons under the control of the police or a similar authority, are in a situation of vulnerability as the authorities who are under a duty to protect them flout this duty by inflicting the humiliation of a slap. The Court also found that the fact that the slap may have been administered thoughtlessly by an officer who was exasperated by the victim’s disrespectful or provocative conduct was irrelevant as the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned.

The Court considers the acts of the Respondent as alleged diminished the dignity of the Applicants and was therefore a violation of Article 5 of the Charter. As to the conditions in the prison cells where the Applicants claimed to have been kept, the Respondent also failed to lead evidence to rebut these claims. We submit that silence without more is deemed admission. The European Court of Human Rights in the case of TIREAN V. ROMANIA (2014) Application no. 47603/10 ECHR where the applicant complained about the conditions of his detention while serving a four-year prison sentence, the applicant further alleged he was beaten up by police officers during the criminal investigation against him and that the medical care during his pre-trial detention was inadequate. The Court concluded that the physical conditions of the applicant’s detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment prescribed by Article 3 of the Convention. A serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3.

Also, in the case of the European Court of Human Rights KARABET AND OTHERS V. UKRAINE (2013) Applications nos. 38906/07 and 52025/07 in an allegation of ill treatment amongst others, where the applicants were brutally beaten by masked security officers and by prison guards to the point of fainting in the case of some. They had been tightly handcuffed, ordered to strip naked and adopt humiliating poses; and were transported in an overcrowded van. Further, they were deprived of access to water or food and exposed to a low temperature without adequate clothing; and, no adequate medical assistance was provided to them. The Court found that the authorities’ brutal action had been grossly disproportionate given that, there had been no transgressions by the Applicants. The Court also found that the Applicants had been subjected to treatment which could only be described as torture. The Court accordingly found a violation of Article 3.

In the instant case, the Respondent denied all the allegations made by the Applicants in their depositions. There was however no specific response to the alleged acts of torture and humiliating treatment while in custody of the agent of the Respondent. In custody situations it is incumbent on the State to provide a plausible explanation for injuries. The Respondents failed to annex any evidence to proof that the Applicants were not subjected to any form of torture inhuman or degrading treatment. No pictures to convince the Court that the Applicants came in and remained in good condition while in detention. The Applicants however provided a series of corroborative depositions on oath which was arguably the best they could provide considering their incarceration.

Therefore the principle of presumption of innocence until proved guilty was as a matter of obligation supposed to have been observed and applied to the inmates by the Respondent to the extent that bail was supposed to have been granted especially when the Court observed that the offence alleged to have been committed was a felony but a Public Order offence. There is no evidence before this Court rebutting these allegations of the Applicants who claimed to have been kept in terrible prison conditions.

In light of the foregoing, the Court holds that the treatment given to the Applicants while in custody is in violation of the Applicants rights guaranteed under Article 5 of the African Charter.

iii.     ACCESS TO FAMILY

The Applicants submitted inter alia that they were not allowed family visits while in detention. In challenging the Applicants assertion in this wise, the Respondent claimed to have annexed the daily occurrence book emanating from the prison which shows records of prison visitation to the Applicants by counsel and family members.

However, having critically scrutinized all the documents and annexures before the Court, we find no document of such nature emanating from the Respondent. As a matter of fact, the burden of proof lies on the person alleging the existence of facts. (See FEMI FALANA supra). However, where the adverse party expressly states that there was no such denial of visits, then it behooves on him to lead evidence to discredit the claims of the Applicants. More so, it is incumbent on the Respondent to annex such evidence having expressly referred to same in his pleadings. The Court notes that the denial of family visits while in detention will have a disproportionate effect on detainees and the aim of reintegration and rehabilitation.

The Court therefore finds that in the absence of such record in proof of the existing visitation record, that the Applicants families’ and Counsel were not allowed access to visit their love ones whilst families which directly affects the Applicant right to the dignity of their family.

iv.     RIGHT TO FAIR TRIAL

The Applicants alleged that throughout the entire trial at the national court there was an environment of intimidation characterized by fear and denial of their right to fair hearing and the right to make a statement before sentencing, the Respondent maintained that the rights to a fair hearing was adequately complied with all through the proceedings at the national Court. Right to fair hearing includes amongst others the Right to:

a.  Right to be presumed innocent until proven guilty by a neutral Court of competent Jurisdiction.

b.  To be heard before a free and fair Court of Competent Jurisdiction

c.  To be defended including the Right have counsel of Choice

d.  Right to access the courts devoid of any intimidation

e.  Right to Appeal

f.   Right to Equality before the Law

g.  Unfettered accessed to counsel.

The provision of Article 7 (c) of the ACHPR provided as follows:

Every individual shall have the right to have his cause heard. This comprises:

“The right to defense, including the right to be defended by counsel of his choice”

In more clear terms, Article 14 (3) (d) International Convention on Civil and Political Rights provides as follows:

I​n the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

“To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”.

The Constitution of the Respondent also guarantees the right to be defended by Counsel. Section 24 (3) of the Gambian Constitution provides that:

“Every person who is charged with a criminal offence-

(a) shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice;”

The Applicants maintained that the Counsel representing them were compelled to withdraw their representation because the Court refused every application made on their behalf. That the presence of armed security personnel in and around the Court room during proceedings prevented their Counsel from consulting with them privately. That after Counsel withdrew their representation, the Court ordered that the Applicant defend themselves without giving them opportunity to engage another Counsel of their choice. Conversely, the Respondent argued that the Applicants were accorded the full guarantees of a fair trial and represented by Counsel of their choice until when counsel opted out and they elected to represent themselves. That the whole process was in conformity with the provisions of Article 7 of the Charter.

The Court having analyzed the annexures to the Applicants’ initiating application, it is clear that the trial Court categorically asked the Applicants in clear terms if they were ready to enter their defense or if they wish to wait for their Counsel but they failed to answer. (See para 29 Exhibit B 10, Judgment of the High Court of the Gambia Suit No. HC/179/16/CR/060/AO). Prior to this, the Applicants were called upon to prepare and enter their defense on the adjourned date and the 1st Applicant responded saying:

“I wi​ll say that our rights have been infringed by this court so I will not participate in a trial where our rights have not been protected. (…) I will therefore not participate in the proceedings”.

Similarly, when the Applicants were asked the number of days they required to file their written address, the 1st Applicant responded thus:

“I have said that I don’t wish to participate in this proceedings so I will not file any address. When I am convicted as I know I will, I will have something to say why sentence should not be passed on me”.

Furthermore, all other Applicants who were unrepresented by Counsel were informed of their rights and options in entering their defenses in accordance with the Criminal Procedure Code of the Gambia. This was communicated to them in their different languages but they remained silent and offered no word or gesture. By implication, it can be inferred that the Applicants waived their right to defense and to be represented by Counsel of their choice.

In HARUN GÜRBÜZ v. TURKEY (2019) (Application no.68556/10) the European Court of Human Rights in analyzing the provisions of Article 6 of the Convention which is in tandem with Article 7 of the African Charter and Article 14 of the ICCPR reiterated:

“Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest.

It must be pointed out that the grant of applications before a Court is at the discretion of the Court, albeit judicially and judiciously. The fact that a party is unsuccessful in any application should not be misconstrued as a violation of the party’s right to fair hearing. In JUSTICE PAUL UTTER DERY & 2 ORS v. THE REPUBLIC OF GHANA ECW/CCJ/JUD/17/19, as it relates to fair hearing, the Court found that failure to secure a favorable judgment is not tantamount to a denial of the right to fair hearing. The Court however notes the statement by the 1st Applicant indicating his unwillingness to participate in his own trial and that such statements constitutes a waiver of right thus the maim that no wrong will emerge out of an act for which consent has been given in other words “volenti non fit injuria.” It is important to note here that the mere presence of armed guards in the course of a trial at the National Court which the Respondent did not deny cannot not the mean absence of Equality before the Law and cannot be interpreted to amount to a violation of the Right to fair trial and on this note the court observed that there is no proof before it from the Applicant to support the allegation that the entire trial process at the National Court was marred with intimidation and deprivations of access to counsel of choice. The Court therefore finds that the Respondent did not violate the Applicants Right to fair hearing and fair trial. In the circumstances as in the instance case the Court hold that the Applicants Rights to fair hearing was not violated by the Respondent and the court so hold.

ISS​UE 3: WHETHER OR NOT THE PROVISIONS OF SECTION 5 OF THE PUBLIC ORDER ACT OF THE GAMBIA CONTRAVENES THE PROVISIONS OF ARTICLE 11 OF THE AFRICAN CHARTER.

The Applicants avers that a fundamental issue to the effect that Section 5 of the Public Order Act of the Gambia violates Article 11 of the African Charter on Human and Peoples Rights. They argued that the provisions of the said Article 5 are too stringent and amount to turning “the fundamental human right of assembly, peaceful protests, processions and demonstrations into a privilege to be conferred at the discretion of the authorities.” The Applicant further claims that the Public Order Act violates the Gambian Constitutional provisions on fundamental freedoms and is therefore void.

The Respondent on the other hand contends that the said acts in no way violates the provisions of Article 11 of the African Charter as the said Article 11 is not absolute but subject to certain limitations. Article 11 of the African Charter provides:

“Every Individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedom of others”.

Section 25 (1) (d) of the Gambian Constitution puts it thus:

“Every person shall have the right to freedom to assemble and demonstrate peaceably and without firearms”.

Furthermore, Section 25(4) of the same Constitution provides-

“​The freedoms referred to in subsections (1) and (2) shall be exercised subject to the law of The Gambia in so far as the law imposes reasonable restrictions on the exercise of the rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of the Gambia, national security, public order, decency, or morality, or in relation to contempt of court”.

Section 5 of the Public Order Act which is being contested provides:

(1​) The Inspector-General of Police in the city of Banjul or the Kanifing Municipality or; in any of the regions, the Governor or other person authorized by the president may direct the conduct of all public processions and prescribe the route by which and the times at which any procession may pass.

(2) A person who is desirous of forming any public procession shall first make application for a license to the Inspector- General of Police or the Governor of the region, or other person authorized by the President, as the case may be, and if the Inspector-General of Police or the Governor of the region or other person authorized by the President is satisfied that the procession is not likely to cause a breach of the peace , he or she shall issue a license specifying the name of the license and defining the conditions on which the procession is permitted to take place.

(3) A condition restricting the display of flags, banners, or emblems section shall not be imposed under subsection (2) of this section except such as are reasonably necessary to prevent risk of a breach of the peace.

(4) A magistrate or police officer not below the rank of Sub- inspector may stop any public procession for which a license has not been issued or which violates any of the conditions of a license issued under subsection (2) of this section, and may order it to disperse.

(5) A public procession which-

(b) Takes place without a license under subsection (2) of this section, or

(c) Neglects to obey any order given under subsection (4) of this section, is deemed to be an unlawful assembly, and all persons taking part in the procession, and in the case of a public procession for which no license has been issued, all persons taking part in the convening, collecting or directing of the procession commit a cognizable offence and on summary conviction before a Magistrate, are liable to imprisonment for a term of three years

The Public Order Act Cap 4 laws of the Gambia, is an extant legislation of the Gambia, duly enacted by the National Assembly of The Gambia. The provisions contained therein are clear and unambiguous.

Section 5 of the Public Order Act specifically calls for a license to be issued by the Executive or law enforcement authority of The Gambia before processions can be held. Similarly, Article 11 of the African Charter provides for that the exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedom of others.

While it is submitted that the restrictions contained in Section 5 of the Public Order Act should not be seen as a tool in the hands of the Executive and law enforcement agencies to impinge on the guaranteed rights of persons under Article 11 of the Charter making it impracticable for individuals to enjoy their Human Rights, the positive obligation of ensuring national security, safety, peace and order should not be disregarded.

The Respondent further argued that the Applicants have not established a violation of Article 11 and that in any event it does not reside in this court to embark on an examination of laws of Member States but rather to protect the rights of citizens when violated.

In the case of FEDERATION OF AFRICAN JOURNALISTS V. REPUBLIC OF THE GAMBIA, (2108) ECW/CCJ/JUD/04/18, the Court having reiterated its human rights competence found that it has the powers to go into the root of the violation i.e. those laws which the Applicants are contesting to establish whether or not they are contrary to the provisions of international human right laws on freedom of expression.

The Respondent further argued that the tenor of the Public Order Act is regulatory of the right to assembly rather than prohibitive and the provisions are reasonably necessary to achieve legitimate aims to ensure public safety and public order. Assemblies of a public character raise a number of practical issues that ought to justify at least a minimum amount of consultation with the authorities regarding time, location, traffic management and other factors. These issues may include safety, security and inconvenience or even economic loss to those affected by the peaceful assembly. Hence, certain forms of regulation, such as the requirement to give prior notice or obtain an authorization or permit for an assembly, do not constitute an interference with the right to freedom of peaceful assembly. However it must be noted that the manner of exercising a Right under any given statute may lead to such action being negative and will therefore undermine the objective intended to be served. The action of the agents of the Respondent could assessed against this background in line with the provisions of Article 11 (2) of the ACHPR. From the provisions of Section 5 of the Public Order Act above, it can be inferred that the whole essence of imposing the need for a license is to ensure law and order, as well as a violent free processions in the overall interest of the populace.

In the case of ÉVA MOLNÁR V. HUNGARY (2009) APP. NO. 10346/05 FINAL, EUR. CT. H.R. the European Court of Human Rights’ position was that prior notification served not only the aim of reconciling, on the one hand, the right to peaceful assembly and, on the other hand, the rights and lawful interests (including the freedom of movement) of others, but also the prevention of disorder or crime. In order to balance these conflicting interests, the institution of preliminary administrative procedures is common practice in Member States when a public demonstration is to be organized, and that such requirements do not, as such, run counter to the principles embodied in Article 11 of the Convention, as long as they do not represent a hidden obstacle to the freedom of peaceful assembly protected by the Convention. Further, in case of LINDA GOMEZ & 5 ORS V. REPUBLIC OF THE GAMBIA (2012) ECW/CCJ/APP/18/12 at pg. 27, the CCJ stated that it lacks the jurisdiction to annul domestic legislations of ECOWAS Member States.

In light of the action of the agents of the Respondents in the instant case, the Court holds that the provisions of section 5 of the Public Order Acts of the Republic of the Gambia did not violate the provisions Article 11 of the African Charter and further holds that the Public Order Act section 5 of the Laws of The Gambia and is in tandem with permissible restrictions in ensuring law and order. However, the requirement of having to obtain the approval of the Inspector General of Police of the Gambian Police Force will undermine the exercise of such right and therefore needs a review.

IS​SUE 4: WHETHER THIS COURT HAS COMPETENCE TO DECLARE THE JUDGEMENTS OF NATIONAL COURT NULL AND VOID.

Finally, the Applicants urged this Court to declare the decision of the national Court of the Gambia null and void. This Court has in its flourishing jurisprudence held that it lacks the jurisdiction to sit on appeal over decisions of National Courts. In BAKARY SARRE & 28 ORS V. THE REPUBLIC OF MALI (2011), ECW/CCJ/JUD/03/11 the Court in determining the application filed by the Applicants held that: “The said application substantially seeks to obtain from the Court a reversal of judgment delivered by the Supreme Court of Mali and seeks to project the Court of Justice of ECOWAS as a Court of cassation over the Supreme Court of Mali. Viewed from that angle, the Court declared that it had no jurisdiction to adjudicate on the matter.” Also in OCEAN KING V. REPUBLIC OF SENEGAL (2011)ECW/CCJ/JUD/07/11 Para 66 @page 161.The Court reiterated its position to the effect that it does not compose itself as an appellate court over decisions of National courts. See also SIKIRU ALADE V. FEDERAL REP. OF NIGERIA (2012) ECW/CCJ/JUD/10/12; MUSA LEO KEITA V. MALI (2007) ECW/CCJ/JUD/03/07 @ pg. 72 para 26; DR. JERRY UGOKWE V. FRN & 1 OR, (2005) ECW/CCJ/JUD/03/05.

The Court therefore aligns itself to its precedents and holds that it lacks the powers to declare the decision of the national Court of the Respondent null and void.

ISSUE 5: WHETHER THE 32ND APPLICANT HAS CAPACITY TO INITIATE THIS APPLICATION ON BEHALF OF EBRIMA SOLO SANDENG (DECEASED)

Article 10 (d) of the Supplementary Protocol (A/SP.1/01/05 Amending Protocol (A/P1/7/91) specifically grants access to the Court to individuals who are seeking relief for violation of their Human Rights and it further provided the conditions precedent :

“Individuals on application for relief for violation of their human rights; the submission of application for which shall:

i.          Not be anonymous; nor

ii.          Be made whilst the same matter has been instituted before another International Court for adjudication.”

Article 10 (d) requires that Applicants seeking relief for violation of their rights must establish the status of a victim who must have suffered a personal loss capable of being ascertained. The import of Article 10 (d) is that only persons who qualifies as victims of Human Rights violations can access the Court to seek relief for violation of their Human Rights. This Court has held in series of decisions that to qualify for relief in respect of Human Right violation the Applicant must establish his capacity as a victim. In the case of CENTER FOR DEMOCRACY AND DEVELOPMENT V. MAMADOU TANJA & REPUBLIC OF NIGER (2011) ECW/CCJ/JUD/05/11 @ 27, the Court has this to say:

‘​‘Cases shall be brought before the court by natural or legal person endowed, within the framework of their national laws, with the required Legal capacity, and who, in addition, shall justify their condition of being Victim…the Court recalls that when an application on human rights. Violation is brought before it, it is so done necessarily by a person who is a victim of the said violation against one or several Member States.’’

Also in the case of MUSA SAIDYKHAN V. REPUBLIC OF THE GAMBIA (2012) ECW/CCJ/JUD/08/12 @ page 43, this Court held that:

“Prin​cipally the object of an award in human rights violation is to vindicate the injured feelings of the victim and to restore his rights and human dignity.’’

It can be concluded from the above decisions that only persons who can justify their claims of being directly affected have the standing to seek reliefs for violations of human rights from the Court.

The question to determine now is whether the Applicants in the instant case are victims within the meaning of Article 10(d) of the Protocol and this leads the Court to determine who is a victim of Human Rights violation. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Survivors of Violation of International Human Rights and Humanitarian Law, was defined in GA Res 60/147,pmbl, Sec IX, UN Doc A/RES/60/147(March 21, 2006), defines:

“ A victim is anyone who suffers individual or collective harm ( or pain) such as physical or mental injury, emotional suffering, economic loss or generally any impairment of Human Rights as a result of acts or omissions that constitutes gross violation of Human Rights or serious violations of Humanitarian Law norms”

As noted above, it is without doubt that the 32nd Applicant is not victim within the meaning of the definition of who is a victim for the purpose of Article 10(d). However, the Court notes that it endorses on the face of the Application that it is coming before this Court in a representative capacity. The 32nd Applicant having endorsed its claim in a representative capacity, it behooves on it to establish by a credible documentary evidence by way of a Letters of Administration or an Authority to show that it has the capacity to represent the estate of Ebrima Solo Sandeng as the deceased Personal Representative. In the absence of this evidence the action fails. To date there is no evidence before this Court to show that the 32nd Applicant in this suit has the capacity required by law to represent the Estate of Ebrima Solo Sandeng (deceased) as his Personal Representative for it to institute this action. On this note, the action of 32nd Applicant fails See the case of the Trustees Jamaa’ a Foundation & 3Ors vs. The Federal Republic of Nigeria& ors. ECW/CCJ/APP/26 /13.

De​cision

For the reasons stated above, the Community Court of Justice, sitting in public after hearing the parties, and their submissions duly considered in the light of the provisions of the African Charter on Human and People’s Rights, as well as the Supplementary Protocol of the Court and the Court’s Rules of Procedure, hereby declares as follows:

1.  That the 32nd Applicant lacks the locus standi to represent the Estate of Ebrima Solo Sandeng in this action, he having been denied locus standi.

2.  That section 5 of the Public Order Act does not violate Article 11 of the African Charter as claimed.

3.  That prayers 7, 14 and 15 of the Applicants on grounds of locus standi are hereby dismissed.

4.  That the arrest and detention of the 1st, 3rd, 4th, 5th, 15th, 17th, 26th, 27th, 28th, 30th and 31st Applicants was lawful and did not violate Articles 5, 6 and 11 of the African Charter. However, the detention that followed was arbitrary as the period of detention went beyond the limit permitted by the law of the Gambia before the Applicants were brought to Court.

5.  Declares that the acts of torture, inhuman and degrading treatment meted out on the 1st, 3rd, 4th, 5th, 15th, 26th , 27th, 28th ,30th and 31st Applicants violates Article 5 of the African Charter.

6.  That the claim for violation of the right to fair hearing of the applicants fails and is hereby dismissed.

7.  That prayer 8 is denied.

Orders​ and awards

In consequence of which the Court orders the Respondent as follows; In consequence of which the Court orders the Respondent as follows;

1.  To pay the sum of One Hundred Thousand United States Dollars (100,000 USD) equally to the 1st, 3rd, 4th, 5th, 15th, 17th, 26th, 27th, 28th, 30th for the hardships ad violations of their Human Rights caused to them by agents of the Respondents.

2.  That the Respondent sets up an independent panel of inquiry to look into the events of the 14th and 16th of April 2016, and also determine the persons responsible for the arrest, detention, torture and other forms of ill- treatment of the Applicants be made to give account of their actions by Putting in place effective measures to discipline and prosecute the police officers involved.

3.  That the Parties bear their own costs.

THIS​ DECISION IS MADE, ADJUDGED AND PRONOUNCED PUBLICLY BY THIS COURT, COMMUNITY COURT OF JUSTICE, ECOWAS; SITTING AT ABUJA, NIGERIA ON THE DAY 20th January, 2020.

Hon. Justice Edward Amoako ASANTE, Presiding

Hon. Justice Gberie-Be OUATTARA, Member

Hon. Justice Keikura BANGURA, Rapporteur

 

Mr Tony Anene MAIDOH, Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 19 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Ouattara JA
Bangra JA
Search summary

 

COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

Holden at Abuja, Nigeria

On Wednesday, the 30th day of October 2019

Suit No. ECW/CCJ/APP/19/17

Judgment No. ECW/CCJ/JUG/31/19

 

BETWEEN

Ham​a Amadou                                                                                           APPLICANT

Assisted by Maître Francois Serres and

Maître Mike Bul (Lawyers registered respectively with the Bar Association of Paris and Niamey)

AND

Rep​ublic of Niger                                                                                      DEFENDANT

Represented by Secretary General of the Government Defence Counsel: Maître Moussa Coulibaly (Barrister-at-Law)

 

BEFORE THEIR LORDSHIPS

 

1.  Hon. Justice Edward Amoako Asante                  Presiding

2.  Hon. Justice Gberi-Bé Ouattara                           Member

3.  Hon. Justice Keikura Bangura                              Member

 

Assisted By: Maître Athanase Atannon                     Registrar

Delivers the following Judgment:

 


THE COURT,


-     Having regard to the 24 July 1993 Revised Treaty establishing the Economic Community of West African States (ECOWAS);

-     Having regard to the 6 July 1991 and the 19 January 2005 Protocols on the ECOWAS Court of Justice;

-     Having regard to the 3 June 2002 Rules of Procedure of Procedure of the Court;

-     Having regard to the 10 December 1948 Universal Declaration of Human Rights (UDHR);

-     Having regard to the 27 June 1981 African Charter on Human and Peoples’ Rights (ACHPR);

-     Having regard to the International Covenant on Civil and Political Rights (ICCPR);

-     Having regard to the Initiating Application of the above-cited Applicant, received at the Registry of the Court on 5 April 2017;

-     Having regard to the Defence of the Republic of Niger received at the Registry of the Court on 28 June 2017;

-     Having regard to the Reply of the Applicant received on 1 August 2017;

-     Having regard to the Rejoinder of the Defendant received at the Registry of the Court on 22 November 2017;

-     Having heard each Party through their respective Counsel; and

-     Upon deliberation in accordance with the law;

 


FAC​TS AND PROCEDURE


1.  By Application received at the Registry of the Court on 5 April 2017, Hama Amadou filed a case before the Community Court of Justice, ECOWAS asking the Court to:

-     Declare that the Republic of Niger violated Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the African Charter on Human and Peoples’ Rights (ACHPR) regarding right to security;

-     Declare that the Republic of Niger violated Article 26 of ICCPR and Article 3 of ACHPR regarding equality before the law;

-     Declare that the Republic of Niger violated Article 15(1) of ICCPR and Article 7(2) of ACHPR regarding the law of nulla poena sine lege;

-     Declare that the Republic of Niger violated Article 14 of ICCPR and Article 7 of ACHPR regarding the right to fair hearing;

-     Declare that the Republic of Niger violated Article 13 of ACHPR regarding the right to participate freely in the government of his country;

-     Declare that the Republic of Niger violated Articles 17 and 23(1) of ICCPR and Article 18 of ACHPR regarding the right to family life;

-     Find that the charges laid were made without legal basis and in violation of the principles of fair trial;

-     Order the Republic of Niger to refrain from implementing the decision made, and to derive all the legal consequences thereof, capable of depriving the Applicant of his rights, either as a litigant or as a citizen, as stipulated in texts subscribed to by the Republic of Niger on human rights; the Court is further requested to restore the Applicant back to his original situation in which he would have found himself, had the said violations not occurred;

-     Ask the Republic of Niger to pay to Amadou Hama the sum of CFA F 3,280,000,000 (Three Billion Two Hundred and Eighty Million CFA Francs) as costs incurred in connection with the instant action.

2.  In support of his Application, by way of written pleadings submitted by his Counsel Maîtres Francois Serres and Maître Mike Bul, Hama Amadou averred that on 25 June 2014, a report by a Police Commissioner was brought to the attention of the Public Prosecutor, highlighting suspicions of the involvement of Madam Adizatou Hama, wife of Amadou Hama, on charges amounting to the fraudulent offer of children to women who were not their biological mothers.

3.  That the statement from the report, which equally indicted other personalities, in the terms of which: “in most of the cases, it was the wives who financed the costs”, did not concern him in any way whatsoever. That even before he was heard on the charges, on 16 July 2014, upon summons from the Public Prosecutor, the Minister of Justice brought the matter before the Council of Ministers, for the purposes of “lifting the parliamentary immunity” on him; and following the summons before the Council of Ministers, the Prime Minister, in turn, brought the matter before the Bureau of the National Assembly, for a trial to be instituted against him.

4.  That in reaction to this manner of proceeding with the case, which he deemed irregular, he challenged, via a mail addressed to the Prime Minister, the procedure adopted, citing violation of the relevant rules of law and procedure.

5.  That his arguments were dismissed by the Prime Minister, and he brought the case before the Constitutional Court to request the opinion of the Court regarding violation of procedure, and to seek suspension of the procedure unlawfully instituted before the Bureau of the National Assembly.

6.  That without waiting for the Court’s opinion, which was still in expectation, and in the absence of the President of the Bureau of the National Assembly (since the National Assembly was not in session), the Bureau was convened by its Vice-President (who is a member of the Majority) and indeed, not by its President; that under utterly irregular conditions, composed of 7 out of the 11 members, the Bureau voted by a simple majority to authorise a trial to be instituted against him. That the decision, as adopted by the Bureau, was taken while he had not even been summoned by the Public Prosecution Office, and while the latter had not ordered any proceedings to be brought against him.

7.  That due to the obvious violations involved in the procedure for removing his immunity, and the risks confronting him, concerning his safety and his life, on 28 August 2014, he was compelled to go into exile in France.

8.  That on 15 September 2014, the Public Prosecutor notified the trial judge of a substituted summons indicating that an authorisation for arrest had been approved by the National Assembly to re-open trial proceedings against him.

9.  That on 23 September 2014, it was observed that he was no more at his home, and a court order was issued to search for him, but to no avail; that on the basis of that fruitless search, on 25 September 2014, the Public Prosecutor instructed the investigating judge to prepare a warrant for his arrest, which was complied with. That on 4 December 2014, the order for closure of the trial proceedings and transfer before the criminal court, stated that his case must be transferred before the criminal court of Niamey.

10. That upon his return to his home country, he was picked off the staircase of the aircraft and sent to the Niamey civilian, that his imprisonment was effected without him appearing before the Public Prosecutor of the area of his arrest nor before another judge. That the detention lasted from 14 November 2015 to 16 March 2016, still without him having appeared before the judge who was investigating the case (who, therefore, did not hear him), nor before another judge.

11. That at any rate, all the other key figures indicted in the procedure were free, and requests for the release of Amadou Hama were systematically rejected upon the pretext of preventing every collusion with the other persons charged with other offences, whereas the investigation at that stage had closed and the case had already been tried in first instance and at appeal stage, and was pending before the Cour de cassation (Cassation Court).

12. That he was thus detained by virtue of an arrest warrant issued on 25 September 2014 whose validity and enforceability cannot be sustained before the decision made by the judges of the court of first instance on 30 January 2015, who ruled that the procedure initiated had no legal basis unless there was a prior decision by a civil court on the issue of parentage and blood relationship.

13. That contending that his human rights were violated, he brought the matter before the Community Court of Justice, ECOWAS for violation of his right to security, his right to equality before the law, his right regarding violation of the law of nulla poena sine lege, his right to fair hearing, and his right to family life.

14. That in response, the Republic of Niger argued, through the written pleadings of his Counsel Maître Moussa Coulibaly, that in 2014, the Nigerian media reported on the discovery of a huge inter-State child trafficking syndicate in the sub-region. That under aegis of a police co- operation framework among ECOWAS Member States, a dispatch was sent from within the Niger Police Force to Nigeria to investigate, and in their report, they made mention of the dismantling of a child trafficking network named ‘baby factories’. That searches conducted on the premises of those ‘baby factories’ led to the discovery of young ladies who were held in captivity till they give birth, and their babies were sold by one Agoundeji Happiness, at 800,000 Naira for a boy and between 300,000 to 400,000 Naira per girl.

15. That the preliminary inquiry of the Criminal Investigation Division (CID) of the Niger Police led to the arrest of 18 persons for questioning including Madam Adizatou Amadou Dieye, the wife of the Applicant.

16. That Madam Adizatou Amadou Dieye challenged the charges made against her and stated that she gave birth to a set of twins on 1 September 2012 without indicating the health centre where she gave birth. That questioned on the birth certificates of the children concerned, she asked the investigators to find out from Hama Amadou, her husband, disclosing further that the children are holders of diplomatic passports of Niger.

17. That in closing the trial of the criminal procedure instituted in connection with the case, the investigating judge pointed out that there were serious and corroborating indications standing against Hama Amadou and testifying that he was accomplice to the offence of fraudulently offering children to women who were not their biological mothers, committed by his wife Adizatou Amadou Dieye, forgery of civil documents through falsification of the birth certificates of Lilian- Guel and Lalia-Fadima, use of forged civil documents by tendering false birth certificates for the purpose of procuring passports for the said two children.

18. That being the President of the National Assembly, and therefore a member of the state parliament, the trial judge transferred the case- file on the proceedings to the Public Prosecutor to enable the procedure to follow its course as required by law.

19. That applying that procedure meant that the Applicant had to be brought to trial.

20. That recognising that the Bureau of the National Assembly was incompetent to authorise him to be brought to trial, and that the authorisation for arrest did not constitute removal of parliamentary immunity, Hama Amadou and a group of opposition parliamentarians brought the case before the Constitutional Court.

21. That by Judgments of 4 and 9 September 2014, the Constitutional Court the then Bureau of the National Assembly was competent, outside its session periods, to authorise the arrest of a parliamentarian, and that the authorisation for arrest given by the Bureau of the National Assembly constituted a removal of parliamentary immunity.

22. That in conclusion, the Honourable Court is principally requested to declare that it has no jurisdiction to hear the case, and alternatively, it is prayed to declare that the Application is inadmissible on the ground of res judicata, and on a further alternative plea, may it please the Court to declare that the Application is ill-founded.

23. That considering that the instant procedure is frivolous in nature and an abuse of court procedure, it requests, as a counter-claim, that the Applicant pay damages of a symbolic 1 CFA Franc to the Republic of Niger and CFA 500,000,000 (Five Hundred Million CFA Francs) as unrepeatable costs.

24. Hama Amadou responds in his Reply, received at the Registry of the Court on 1 August 2017, that the violations he submitted before the Court are:

-     Violation of his parliamentary immunity;

-     Violation of the principle presumption of innocence;

-     Political instigation of members of the parliamentary majority of the Bureau;

-     Violation of the right to effective remedy;

-     Violation of the right to return to one’s country;

-     The expired nature of the arrest warrant issued against him.

25. That it was in the light of these allegations that the Court must examine whether there is any relevance of res judicata as pleaded by the Republic of Niger. That the action brought before the Court by him is founded upon violation of the right to security, violation of the right to equality before the law, violation of the principle of nulla poena sine lege, violation of the principle of fair trial, and violation of the right to family life.

26. That the Honourable Court is competent to determine the case and that there is no re judicata.

27. In its Rejoinder dated 12 January 2018 received at the Registry of the Court on 15 January 2018, the Republic of Niger argues that the Reply lodged by Hama Amadou on 22 November 2017, after closure of the written procedure, and in violation of the provisions of Articles 37(2)(3) and 40(1)(2) of the Rules of Procedure of the Court, must be dismissed. Alternatively, the Republic of Niger pleads incompetence of the Court, and on a further alternative ground, asks the Court to dismiss all the claims brought by the Applicant, in their intents and purposes. The Republic of Niger also asks the Court to order DNA tests to be carried out on Adizatou Amadou Dieye and on the alleged two children of Hama Amadou and Adizatou Amadou Dieye, as a married couple.

28. Hama Amadou argues that the provisions of Articles 37 and 40 invoked above the Defendant were not violated. That the Court has jurisdiction to hear the dispute and that his rights are violated by the Republic of Niger. That in the absence of any relevant law of Niger on the matter, no DNA test must be ordered by the Court to be conducted on his wife or his children.

29. Upon examining the pleadings in the case, it is apparent that the Court must make pronouncements on the following issues:

(1) Jurisdiction of the Court;

(2) Admissibility of the Application and res judicata;

(3) Violation of human rights;

(4) Damages on human rights violation;

(5) Damages on vexatious court process.

 


ANALYSIS OF THE COURT


A.  REGARDING THE JURISDICTION OF THE COURT

30. First and foremost, it is appropriate to stress that the Republic of Niger raised as a principal defence the issue of lack of jurisdiction of the Honourable Court.

31. The Court recalls that in every instance where an application is brought before it, it is binding upon the Court to examine its jurisdiction, as to whether, all things well considered, the incompetence of the Court is advanced as a principal plea for defence; the Court must therefore make a pronouncement on its jurisdiction.

32. It can be deduced from the provisions of Article 9(4) of Supplementary Protocol A/SP.1/01/05 amending Protocol A/P.1/7/91 on the Community Court of Justice, that the Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.

33. In that light, the Applicant invokes violation of human rights under Article 9 of the 19 January 2005 Protocol, alleging that he is a victim of that violation.

34. In several cases, including Mamadou Tandja v. Niger and El Hadj Aboubacar Tijani v. BCEAO, the Honourable Court declares that for the Court to uphold its human rights mandate, citing human rights violation suffices.

35. It is apparent from the Initiating Application that Hama Amadou is asking the Court to declare that the Republic of Niger violated the provisions of: Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the African Charter on Human and Peoples’ Rights (ACHPR) regarding right to security; Article 26 of ICCPR and Article 3 of ACHPR regarding equality before the law; Article 15(1) of ICCPR and Article 7(2) of ACHPR regarding the law of nulla poena sine lege; Article 14 of ICCPR and Article 7 of ACHPR regarding the right to fair hearing; Article 13 of ACHPR regarding the right to participate freely in the government of his country; Articles 17 and 23(1) of ICCPR and Article 18 of ACHPR regarding the right to family life.

36. He further asks the Court to: find that the charges laid against him were made without legal basis and in violation of the principles of fair trial, and order the Republic of Niger to refrain from implementing the decision made, and derive all the legal consequences thereof, capable of depriving him of his rights, either as a litigant or as a citizen, as stipulated in texts subscribed to by the Republic of Niger on human rights; to restore him back to his original situation in which he would have found himself, had the said violations not occurred.

37. The Court notes that it has jurisdiction to hear human rights violations arising from provisions of the ACHPR and the ICCPR, which the Applicant claims to be a victim of, as may have been perpetrated by the Republic of Niger, a Member State of the Economic Community of West African States (ECOWAS).

38. On the other hand, as regards the request before the Court, to examine the legality or otherwise of the charges made against him by the law-enforcement agencies of the Republic of Niger, the Court recalls that as far as that specific request is concerned, there is a well- established case law of the Court according to which applications brought against decisions of the national courts of Member States shall be considered to be outside the remit of the powers of the Court.

39. The Court held so in Case Concerning Jerry Ugokwe v. Federal Republic of Nigeria (7 October 2005).

40.  In Case Concerning Al Hadji Hammani Tijani v. Federal Republic of Nigeria and Others (28 June 2007), the Court was of the view that: “Admitting this application will amount to this Court interfering in the criminal jurisdiction of the Nigerian Courts, without justification” §45

41. Similarly, in the judgment on Alimu Akeem v. Federal Republic of Nigeria (28 January 2014), the Court recalled that: “It is trite that in those cases where the subject-matter of the dispute essentially had to do with a re-examining of judgments already delivered by the domestic courts, the Honourable Court held that they be dismissed.”

42. Finally, in the judgment of CDS Rahama v. Republic of Niger (23 April 2015), the Court ruled that: “On the basis of the principle behind this standpoint, it can be deduced that the requests of CDS Rahama concerning the decisions of the local courts of Niger cannot be granted, the reason being that the Court has no remit for examining such decisions; and more generally, after decisions are made by the domestic courts of Niger, the Court has no jurisdiction to examine whether those local courts of Niger adhered or not to their jurisprudence or generally, to the national law of Niger. ” (§51).

43. Such abundant and relevant jurisprudence urges the Court to decline jurisdiction on that aspect of the Application which concerns the domestic law.

44. Whatever the case may be, it is undoubted that in the Application brought before the Court on 5 April 2017 by Hama Amadou against the Republic of Niger, he equally alleges violation of human rights, notably violation of the right to security, violation of the right to equality before the law, violation of the principle of nulla poena sine lege, violation of the right to fair trial and violation of the right to family life.

45. In accordance with Article 9(4) of the January 2005 Protocol, in the terms of which “The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State”, and in line with Article 10(d) of the same Protocol which provides that “Access to the Court is open to ... individuals on application for relief for violation of their human rights ...”, the Honourable Court is competent to hear the instant case.

 

B.  REGARDING ADMISSIBILITY OF THE APPLICATION AND THE FORCE OF RES JUDICATA

46. In the terms of Article 10(d) of Supplementary Protocol A/SP.1/01/05 of 19 January 2005: “Access to the Court is open to ... individuals on application for relief for violation of their human rights ...”.

47. The application thus submitted shall not be anonymous nor be made whilst the same matter has been instituted before another International Cour for adjudication.

48. In the present case, the Court notes that an application for human rights violation has been submitted before it by Hama Amadou, claiming to a victim of those human rights violations as enumerated in the Initiating Application.

49. Upon scrutiny, the Application is not anonymous and the Applicant has not lodged the same matter before another International Court for adjudication. The Court is therefore, in principle and on the face of it, declares the Application admissible.

50. All the same, it is worthy to recall that in the Defence against the Application filed by Hama Amadou, the Republic of Niger invoked res judicata, which, legally speaking, is a foreclosure (an estoppel).

51. The Court emphasises that res judicata is the sum total of effects arising from a court decision in such manner as to render the decision not contestable except under legally open channels.

52. A court decision is binding on the parties and all the courts of justice; a court decision thus prevents other courts from settling the same dispute for a second time.

53. However, res judicata only concerns the subject-matter of the decision made in court.

54. The orders sought must have been made by the same parties and against the same parties, and must be based on the same cause; what is asked for from the court must remain the same.

55. Incidentally, the Republic of Niger avers that the present case is exactly the same as the one Hama Amadou filed before the Honourable Court (ECW/CCJ/APP/32/15) which was decided on its merits in Judgment ECW/CCJ/JUD/20/16; the Republic of Niger consequently affirms that the force of res judicata is applicable.

56. On the contrary, Hama Amadou maintains that the present procedure is completely different from the first one in the sense that unlike the first one, he is now invoking violations of: right to security, right to equality before the law, right regarding violation of the law of nulla poena sine lege, right to fair hearing, and right to family life.

57. The Court must conduct a critical analysis of the facts, so as to determine if in the instant case, there is indeed res judicata.

58. The first procedure, Suit No. ECW/CCJ/APP/32/15, was between Hama Amadou, as Applicant, and the Republic of Niger, as Defendant.

59. The present procedure, ECW/CCJ/APP/19/17, is between Hama Amadou, as Applicant, and the Republic of Niger, as Defendant.

60. The two suits therefore involve the same Parties coming before the Court, in their same respective capacities.

61. The following facts can be gathered from the judgment delivered on the first case, as delivered by the Court:

-     The Applicant, former President of the National Assembly of Niger, filed a case before the Court for human rights violation;

-     Initially an ally of the government in place, after the 2011 elections, he had to leave the political alliance, following internal disagreements regarding the alliance. He contends that during the month of February 2014, various measures were taken by the government authorities primarily aimed at stripping him of police protection. But of special note is that in the month of June 2014, and after the press had reported on a big case of child trafficking, whose principal transit points were located in the Republic of Benin, the Republic of Niger and the Federal Republic of Nigeria, police investigations led to the indictment of the Applicant’s wife, and subsequently the Applicant himself, in connection with the case. Inquiries were thus launched against them, and on 22 June 2014, Mrs. Hama Amadou was summoned for questioning; she was placed in police custody and accused of fraudulent sale of children to women who were not their biological mothers, forgery and use of forged documents and criminal association;

-     On 15 September 2014, the Prosecutor brings the matter before the dean of investigating judges, for trial proceedings to be instituted against Hama Amadou, under the same counts of charges;

-     Indeed, due to the status of the Applicant as a parliamentarian, and moreover as the President of the National Assembly, a special procedure was required for effecting his arrest. It was within that context that the Prime Minister served an application on the Bureau of the National Assembly to produce Hama Amadou for prosecution. The Bureau acceded to the request, informing the President of the Appeal Court of Niamey;

-     The same day, on 26 August 2014, in writing, Hama Amadou writes to the following authorities, and brings the matter before them, considering the approach adopted by certain state institutions, in bringing him before trial, as an illegal procedure: the Prime Minister himself, the Vice- President of the National Assembly, and particularly, strictly legally speaking, the Constitutional Court (for interpretation of Article 88 of the Constitution of Niger, regarding parliamentary immunity and the conditions for the arrest of a parliamentarian);

-     Almost a month later, on 25 September 2014, an arrest warrant was issued against the Applicant, who quickly left the country. He stays ‘in exile’ for more than one year. It was upon his return to the country, particularly to participate in the presidential election, that he was arrested and detained;

-     It was under those circumstances that he decided, by an application which reached the Registry of the Court on 3 November 2015, to file his case before the ECOWAS Court of Justice, claiming that the state authorities of Niger violated his rights;

-     At the same time, the Applicant lodged an application requesting the Court to hear the case under expedited procedure, claiming urgency. The Court, in an order, dismissed the request and ordered the proceedings to continue;

-     The Republic of Niger, on its part, lodged a defence on 1 December 2015, and an ‘additional’ memorial in defence, on 4 December 2015.

62. Upon examining the foregoing facts, one is left with no doubt that the same facts are at play in the two procedures; since the delivery of the said Judgment by the Honourable Court on 1 July 2016, similar charges have not been filed against Hama Amadou, the Applicant.

63. In the first case, Hama Amadou pleaded that these facts constitute human rights violation and he asked for monetary compensation; in the present case, he equally pleads human rights violation and asks for relief for the harm the violations may have caused him.

64. The Court finds therefore that in the present case, the Application is made by the same Applicant, Hama Amadou, against the same Defendant, the Republic of Niger. The Court equally finds that the Application is based on the same cause, that is to say, human rights violation. The purpose of the request is also the same, in the sense that in both proceedings, the order sought is payment of damages.

65. Now, very obviously, the Honourable Court has sat on this case and already adjudicated and concluded that the Applicant did not produce any decisive proofs capable of establishing evidence of violation of rights. His Application was therefore dismissed.

66. Since Judgment No. ECW/CCJ/JUD/20/16 of the Court is not subject to appeal, it automatically means that the judgment is res judicata, such that that very case which gave rise to the said judgment cannot be brought before the Court for a second time without invoking new facts before the Court.

67. Therefore, irrespective of its apparent consistency with formality, the Application of Hama Amadou is inadmissible before the Court.

68. Since the Application is inadmissible on grounds of res judicata, the Court cannot make any pronouncement on the alleged human rights violation, much less, on the request for damages in reparation for the said violations.

 

C.  REG​ARDING COUNTER-CLAIMS AND DAMAGES FOR ABUSE OF COURT PROCESS

69. The Court recalls that abuse in the exercise of a right is constituted by a manifest offence such as fraud or bad faith, a gross misdemeanour of deceit, or an intention to cause harm.

70. In the case at hand, the pleading of the Republic of Niger describes the instant procedure as an abuse of court process. It also claims that the action is vexatious and of bad faith towards the interests of the Republic of Niger, but it does not bring evidence of the offence committed by the Applicant who initiated the process, his alleged gross misdemeanour, his bad faith, or his intention to harm.

71. Consequently, the said request, as made by the Republic of Niger, is ill- founded.

72. The request is hereby dismissed.

 

D.  RE​GARDING COSTS

73. In the terms of Article 66 of the Rules of Procedure of the Community Court of Justice, ECOWAS, “The unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.”

74. In the instant case, both Parties are unsuccessful.

75. Moreover, each of the two Parties expressly applied for costs to be awarded against the other.

76. Thus, each Party shall bear its own costs.

 


FOR THESE REASONS


The Court,

-     Adjudicating in a public session, after hearing both Parties, in a matter on human rights violation, in first and last resort;

-     Declares that it has no jurisdiction to adjudicate on all the issues raised by the Applicant, concerning the decisions of the domestic courts of the Republic of Niger;

-     Declares that it has jurisdiction to adjudicate on the other matters pleaded in the Application;

-     Finds that the dispute is between the same Parties, maintaining the same former status respectively as Applicant and Defendant, with both Parties pleading the same cause, and for the same purpose;

-     Adjudges that the force of res judicata is upheld and sustained;

-     Adjudges therefore that the Application of Hama Amadou is inadmissible;

-     Entertains the counter-claim and application for damages brought by the Defendant;

-     Adjudges, however, that the counter-claim and application for damages brought by the Defendant are ill-founded;

-     Dismisses the counter-claim and application for damages brought by the Defendant;

-     Adjudges that each Party shall bear its own costs.

 

Made and declared on the day, month and year indicated above.

 


AND THE FOLLOWING HEREBY APPEND THEIR SIGNATURES


 

1.  Hon. Justice Edward Amoako Asante                                   Presiding

2.  Hon. Justice Gberi-Bé Ouattara                                           Member

3.  Hon. Justice Keikura Bangura                                              Member

 

Assisted By: Maître Athanase Atannon                                     Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 41 of 2016
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Ouattara JA
Search summary

 

 

JUDGMENT No. ECW/CCJ/JUD/12/19

---

COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN

STATES (ECOWAS)

HOLDEN AT ABUJA, NIGERIA

ON WEDNESDAY, THE 28TH DAY OF FEBRUARY 2019

 

IN THE CASE BETWEEN

NANCY BOHN-DOE, a citizen of Liberia and former First Lady of Liberia, resident at 9th Street Sinkor, Montserrado County, Republic of Liberia: Administratrix of the intestate estate of her husband the late Dr. Samuel Kanyon Doe Sr., former President of the Republic of Liberia, whose counsel is constituted by Cllr. Milton D. Taylor of Law Offices of Taylor & Associates Inc., Front Street, Monrovia, Liberia.

APPLICANT

AND

THE REPUBLIC OF LIBERIA, represented by the Solicitor-General of the Republic of Liberia, Cllr. Betty Lamin-Blamo, in association with Cllr. Emmanuel B. James and Cllr. Rosemarie B. James, both Counsellors-at-Law with the International Group of Legal Advocates and Consultants, 4 Clay Street, Crown Hills Monrovia, Liberia.

 

FIRST DEFENDANT

 

The Second and Third Defendants, being, respectively: The Central Bank of Liberia and The Attorney General of the Republic of Liberia, whose joint address is at 9th Street Sinkor, Montserrado County, Republic of Liberia.

Suit registered and heard under No. ECW/CCJ/APP/41/16 on the General List.

 

BEFORE THEIR LORDSHIPS

1.  Hon. Justice Edward Amoako Asante                        Presiding

2.  Hon. Justice Gberi-Be Ouattara                                 Judge Rapporteur

3.   Hon. Justice Dupe Atoki                                           Member

Assisted by Barrister Tony Anene-Maidoh                     Chief Registrar

Hereby delivers Judgment No. ECW/CCJ/JUD/12/19 as follows:

 


 

THE COURT,


 

-     Having regard to the Revised Treaty of 24 July 1993 establishing the Economic Community of West African States (ECOWAS);

-     Having regard to the 6 July 1991 Protocol on the Community Court Justice, ECOWAS and the 19 January 2005 Protocol on the Community Court Justice, ECOWAS;

-     Having regard to the 3 June 2002 Rules of Procedure of the Community Court Justice, ECOWAS;

-     Having regard to the 10 December 1948 Universal Declaration of Human Rights;

-     Having regard to the 27 June 1981 African Charter on Human and Peoples’ Rights;

-     Having regard to the above-mentioned Initiating Application received at the Court Registry on 7 December 2016;

-     Having regard to the Defence by the Republic of Liberia received at the Court Registry on 15 February 2017;

-     Having heard each Party through their respective Counsel; and

-     Upon deliberation in accordance with the law;

 


II. FACTS AND PROCEDURE


 

By Application dated 17 November 2016, received at the Court Registry on 7 December 2016, Mrs. Nancy Bohn-Doe pleads as follows:

That she is the administratrix of the intestate estate of her late husband the late President Samuel Kanyon Doe, who was captured and killed on 10 September 1990 in the course of the Liberian civil war.

That while he was alive, the late President Samuel Kanyon Doe was the owner of several bank accounts opened at banks in Liberia and outside Liberia, including the local branch of Bank of Credit and Commerce International (BCCI).

That before the events which cost the late President Samuel Kanyon Doe his life, she and the other members of his family fled into exile; during the exile period, the Applicant went to the Cayman Island, with the hope of retrieving the funds her late husband had lodged in the accounts of the BCCI branch in Liberia. Since she had no documents to prove that she was the administratrix of the intestate estate of her late husband, she could not return to the Cayman Island to pursue the procedure further.

That in 1993, the National Bank of Liberia, which had become the Central Bank Liberia, wrote to the Monthly and Probate Court of Montserrado County in respect of Account Number 02016498 opened by her late husband at a local bank (LUBI), that the sum of 148,196.50 US Dollars had been illegally withdrawn with the complicity of the agents of the Defendant State.

That on 1 December 1994, the Central Bank of Liberia wrote to her late husband, although the Central Bank perfectly knew that he had died 4 years before then, to inform him of the winding up of BCCI, calling on him to report to the bank within 30 days to identify himself and confirm the accounts and deposits at the BCCI, deposits evaluated at 4,173,154.99 US Dollars. From the time that mail was sent, more than 23 years have elapsed.

That the sole motive of the Defendant in addressing the said letter to the owner of the account, whereas it was widely known that the said owner had died several years before then, was to deprive her (the Applicant) and the other legitimate intestate successors, of the bank deposits, in flagrant violation of their right to property, as guaranteed under Article 14 of the African Charter on Human and Peoples’ Rights.

That the late President had equally made deposits in US Dollars in other banks which had wound up under the instructions and supervision of the Central Bank of Liberia; with the result that the total amount of deposits would rise to 5,521,945.53 US Dollars, to be re-evaluated at 6% interest, so as to arrive at a total amount the Applicant is claiming from the Defendant, in the sum of 18,130,778.09 US Dollars, plus 2% successful attorney’s fees (342,625.57 US Dollars).

That on 30 June 2001, the Attorney General and Minister of Justice of Liberia signed an attestation in the terms of which the Defendant State acknowledged that it had no claim or grievance against the late President Samuel Kanyon Doe, and thus reaffirmed the right of his family to enjoy all the intestate assets of the deceased.

That in violation of the said commitment and the assurance derived therein for the family of the deceased, the Government of Liberia undertook negotiations and concluded a final bank-accounts settlement with the bank at the Cayman Island in respect of the bank deposits of the deceased Samuel Kanyon Doe and his wife. That consequently, the Plaintiff Counsel produced before the Defendant, in July 2011, a mail of the bank announcing the closure of the matter regarding the said commitment.

That the BCCI funds belonging to the deceased Samuel Kanyon Doe was thus transferred to the Central Bank of Liberia, and the latter took possession of the funds; that these are funds belonging to the deceased and his family. The Central Bank of Liberia effected the measure of possession of the funds through various procedures of winding up the local banks, in total violation of the right to property and the intestate rights of the heirs to the deceased Samuel Kanyon Doe.

That despite the numerous efforts and steps taken by the Applicant to seek information from the Governor of the Central Bank of the Defendant State, regarding the bank accounts and deposits made by the late President in financial institutions in Liberia and outside Liberia, the Defendant stubbornly refused to grant the Applicant access to any of the pieces of information she requested, thus violating her right to information as enshrined in Article 9 of the African Charter on Human and Peoples’ Rights.

That to terminate those violations, she sued the Central Bank of Liberia on 30 November 2011. After 4 long years of legal battle, characterised by ploys aimed at blocking the trial proceedings or delaying the procedure, the Commercial Court finally delivered judgment in favour of the Applicant and her family on 14 November 2015. The Central Bank of Liberia was thus asked to pay 10,482,299.99 US Dollars plus interest, in addition to successful attorney’s fees.

That to frustrate that decision, the Central Bank of Liberia filed an application before the Supreme Court, and the Supreme Court was equally seised by an application from the Attorney General and Minister of Justice of the Defendant State, requesting the intervention of the State in the procedure, accompanied by a writ of prohibition requesting suspension of proceedings on the application lodged by the Central Bank of Liberia.

That by these manoeuvres, the Defendant and its agents succeeded in blocking the flow of the trial procedure, which continued to remain pending before the Supreme Court, with no court trial having been conducted since March 2016, despite the vehemence of the Applicant for her cause to be listed and heard.

That exasperated by the long wait to retrieve the funds left by her late husband for the family, the Applicant filed her case before this Honourable Court for violation of her human rights, notably for violation of Articles 1, 2, 3,9,14 and 19 of the African Charter on Human and Peoples’ Rights, and Articles 6, 7, 17 and 25 of the Universal Declaration of Human Rights.

Consequently, the Applicant asks that it may please the Court to make the following declarations:

·   A declaration that denying the Applicant access to the lawful monies deposited by the late Dr. Samuel K. Doe, Sr. in other commercial banks in Liberia, including BCCI, is a violation of her human rights;

·   A declaration that the refusal of the Defendants to provide information or documents that could help the Applicant to discover other deposits that might have been made by the deceased in those banks, including information or documents on the deceased’s account in Rovia Bank, amounts to a violation of human rights;

·   A declaration that Defendants pay the Applicant the amount of US$5, 521,945.53 deposited in accounts herein above mentioned that have presently been made known to the Applicant, plus 6% interest per annum as per local law, the total amount, including the principal herein mentioned, standing at US$18, 130, 778.09;

·   A declaration that the Defendants pay the Applicant US$ US$ 148, 196.50 illegally withdrawn under their authority to the then Bank Examiner of the 3rd Defendant, plus 6% interests per annum;

·   A declaration that the Defendants provide the ledger of depositors with other liquidated commercial banks to help the Applicant in the search of other deposits that might have been made in those banks by the deceased;

·   A declaration that the Defendants pay the sum of USD$9,000,000.00 (Nine Million United States Dollars) as compensation for violation of the rights of the Applicant, subjecting the Applicant and the heirs to the absence of basic needs and a decent living standard, as well as quality education and better health care for the children and grandchildren of the deceased.

By its Memorial in Defence deposited on 28 January 2017, received at the Registry on 28 February 2017, the Republic of Liberia raised the following Preliminary Objections and maintained on its own part:

That the Application is inadmissible before this Honourable Court as it fails to state or demonstrate any act or conduct on the part of the Defendants that are indicative of a characteristic violation of a fundamental human right of the Applicant.

That the amounts claimed, in the Applicant’s own words, may be in the possession of the Central Bank of Liberia, which explains why the Applicant sued the Central Bank of Liberia before the Commercial Court. That neither the State nor the Attorney General and Minister of Justice were party to the domestic procedure. According to the defendant, that is the proof that the Applicant has no charge against the State and as such it will be inadmissible to drag it before the ECOWAS Court for failure to implement a decision delivered against a third party.

That it is therefore obvious that the against the State, the Court may legitimately exercise its jurisdiction but no blame has been laid against the State apart from the application it lodged before the Supreme Court for stay of proceedings, an act the Defendant deems totally justified in the light of the rules of procedure in force in the country.

The Defendant claims that the Central Bank of Liberia, the target of the essential complaints filed, has no capacity to plead a case before the instant Court, no more than the Attorney General and Minister of Justice. That these two persons have thus been erroneously sued before the instant Court and concludes thereby that the action brought against the Central Bank of Liberia and the Attorney General and Minister of Justice is inadmissible.

The Defendant State equally blames the Applicant for not invoking even once before the domestic courts, human rights violation, and for bringing her case before the ECOWAS Court at a time when the action for retrieving her assets and credits is still pending before the Supreme Court of Liberia. The Defendant State maintains that if the national procedure was not progressing at a rate that meets her satisfaction, she was free to file an action before the Supreme Court itself, rather than to blame the Defendant State, whereas the latter has no control over the scheduling of the hearings before the national courts.

Besides, the Defendant State maintains that the action brought by is statute barred pursuant to the provisions of Article 9(3) of the Supplementary Protocol on the Court. That indeed, 27 years had passed since the assassination of her husband, and that she is unforgivably to be blamed for negligence because she had been aware of her status as the intestate heir to her deceased husband since 18 February 2004.

Consequently, the Defendant asked for the following remedies from the Court:

·   Sanction the Applicant’s negligence or failure to use the channels of redress available to her under the Constitution of Liberia and the national laws of Liberia, by declaring her Application purely and simply inadmissible;

·   Find that the Applicant has not demonstrated any violation that may be attributable to the Defendant or likely to render it liable for any offence;

·   Ask the Applicant to pay to the Defendant the sum of 150,000 US Dollars as costs it had incurred due to the trial;

·   Impose a fine on the Plaintiff Counsel or impose an exemplary sanction on him for abuse of the court process.

 


III. ANA​LYSIS OF THE COURT


 

AS TO JURISDICTION OF THE COURT

The Republic of Liberia, Defendant in the instant proceedings, raised a Preliminary Objection regarding the competence of the Court. That the Applicant’s action is inadmissible before this Honourable Court, as it fails to state or demonstrate any act or conduct on the part of the Defendants that are indicative of a characteristic violation of a fundamental human right of the Applicant, apart from the application it lodged before the Supreme Court for stay of proceedings, an act which the Defendant deems totally justified in the light of the rules of procedure in force in the country.

In the instant case, the widow Mrs. Nancy Bohn-Doe, intestate successor of the late Samuel Kanyon Doe, former President of Liberia, based her claims on Articles 1,2,3,9, 14 and 19 of the African Charter on Human and Peoples Rights and on Articles 6, 7, 17 and 258 of the Universal Declaration of Human Rights, international instruments subscribed to by the Republic of Liberia.

Therefore, it is erroneous for the Defendant to attempt to contest the jurisdiction of the Court, whereas the consistently held case law of the Court has always been that it suffices for an applicant to make reference to the international instruments on human rights, for the provisions of Articles 9(4) and 10 of Supplementary Protocol A/P1/01/05 on the ECOWAS Court to apply, in regard to human rights violation.

The Court recalled this principle in Judgment No. ECW/CCJ/JUD/09/11 of 7 October 2014 in Ameganvi Manavi Isabelle and Others v. Republic of Togo.

Consequently, the Court dismisses the objection regarding lack of jurisdiction, as raised by the Defendant, and declares that the Court is competent to adjudicate on the case brought before it.

 

AS TO THE PRELIMINARY OBJECTION REGARDING FORECLOSURE

The Republic of Liberia maintained that the Applicant’s case is foreclosed in the sense that more than 27 years had passed since the death of her husband, invoking in that regard, the provisions of Article 9, paragraph 3 of Supplementary Protocol A1/01/05 on the Court.

The Court recalls that the said Article 9(3) is worded as follows: “Any action by or against a Community Institution or against any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.”

Quite clearly, the said provision of Article 9 of the Supplementary Protocol concerns matters bordering on commission of offences and they are solely applicable to offences committed by the Economic Community of West African States (ECOWAS) as defined under Article 2 of the 24 July 1993 Revised Treaty, and also applies to third parties and agents of ECOWAS, as an entity, but not to the Member States.

Since the legal basis of the objection regarding foreclosure is erroneous, it shall be appropriate to dismiss it and pursue the procedure further.

 

AS TO ADMISSIBILITY OF THE APPLICATION

By Application dated 7 December 2016, the widow Mrs. Nancy Bohn-Doe filed a suit before this Honourable Court, respectively, against the Republic of Liberia, the Attorney General and Minister of Justice of the Republic of Liberia and the Central Bank of Liberia.

In matters concerning human rigths violation, the jurisprudence of the Court is well established regarding the fact that only States shall be Defendants, as the principal subjects of international law, and not individuals.

In Judgment No. ECW/CCJ/RUL/04/10 of 11 June 2010 on the Peter David case, and in Judgment No. ECW/CCJ/JUD/05/10 of 8 November 2010 on Mamadou Tandja v. Republic of Niger and General Sabou Djibo, and ECW/CCJ/APP/20/16, ECW/CCJ/JUD/05/18, Judgment on Case Concerning Baba Boubie and 10 Others v.  Republic of Cote d’Ivoire and BCEAO, this Honourable Court recalled the general principle recognised in international law according to which actions for human rights violation are brought against States and not individuals, in that the rights in contention are derived from international conventions which have been accepted and assented to by the States which have committed themselves to adhere to them and safeguard them.

It follows thus that since the Central Bank of Liberia and the Attorney General and Minister of Justice of Liberia are not signatories to the African Charter on Human and Peoples’ Rights nor to the Universal Declaration of Human Rights, they cannot be sued before this Court, and the action cannot be admitted as nominally filed against them.

 

AS TO THE MERITS OF THE CASE

Regarding violation of right to property

The Applicant requested that the Republic of Liberia be made to pay: the sum of 5,521,945.53 US Dollars, re-evaluated at 6% interest per annum in accordance with the domestic law, thus amounting to 18,130,778.09 US Dollars; plus the sum of US$ US$ 148, 196.50 Dollars, with an interest of 6% interest per annum; and an additional US$ 148, 196.50 Dollars; all representing, respectively, the amounts of bank deposits made by the deceased, the sum illegally withdrawn from the account domiciled at Rovia Bank, and reparation for all the violations suffered by her and all the other intestate successors, pursuant to Articles 1,2,3,9, 14 and 19 of the African Charter on Human and Peoples Rights and on Articles 6, 7, 17 and 258 of the Universal Declaration of Human Rights.

As to any form of response which may have been formulated against this request, apart from the objection regarding foreclosure, which has already been dismissed, the Republic of Liberia maintains that apart from the application for stay of proceedings which it had lodged before the Supreme Court of Liberia, no grievance has been made against the Republic of Liberia, and the Republic of Liberia, at any rate, blames Mrs. Nancy Bohn-Doe for not invoking violation of her human rights before the domestic courts, and for bringing her case directly before the ECOWAS Court of Justice at a time when her action for the retrieval of her assets and credits was pending before the Supreme Court of Liberia. The Defendant State avers that the Applicant was free to bring an action against the Supreme Court of Liberia, and not against the Republic of Liberia, in so far as the Republic of Liberia has no control over the management of cases pending before the national courts.

The Court recalls that it has consistently held that direct access before the Community Court of Justice, ECOWAS without exhaustion of local remedies is a possibility for litigants, all the more so when non-exhaustion of local remedies prior to accessing the Court does not affect the admissibility of the action. The Republic of Liberia therefore advances such weak argument in vain.

In terms of the merits of the case, the Republic of Liberia seems to have forgotten that as a Member State of ECOWAS, it is signatory to the African Charter on Human and Peoples’ Rights and other international instruments of human rights protection, and in that capacity, the obligation rests solely on the Republic of Liberia to protect and defend the rights deriving from those international instruments. It shall be inappropriate indeed in the instant case for the Defendant State to maintain that it has no control over the activities of the domestic courts of the Republic of Liberia whereas it is incumbent upon the Republic of Liberia to ensure the effective functioning of the all the State organs, ministries, departments and agencies, including the State judicial system. Besides, the Court finds that the Republic of Liberia did not file among the court pleadings any evidence of the court proceedings by virtue of which it seized the assets of the late Samuel Kanyon Doe, to the detriment of his family, thus denying all his intestate successors of their property. Incidentally, without considering the situation of the family, in terms of having to restore the funds to them, the Defendant State, having acknowledged its responsibility of protector and defender of human rights, did put forth however certain irrelevant arguments like foreclosure, non-exhaustion of local remedies and absence of control over the domestic courts, without challenging the fact that it did block the said funds while expecting the deceased to come forth and justify the source of those funds, nor did the Defendant State contest the amounts of the said funds, without stating whether it had any reason whatsoever to suspect the legality otherwise of the source of those funds.

In the light of the foregoing, it cannot be contested that the Republic of Liberia violated the Applicant’s right to property and the right to property of the other intestate successors of the late Samuel Kanyon Doe, as established and enshrined in the African Charter on Human and Peoples’ Rights and the Universal Declaration of Human Rights.

As regards the amounts requested, it shall be appropriate to point out that the Applicant does not bring any evidence of withdrawal of the sum of 148,196.50 US Dollars by the Liberian authorities from the alleged account of his late husband, and also, she does not provide any justification for the nature and quantum of the harm she claims to have suffered such as may serve as a basis for the damages evaluated at USD$9,000,000.00.

The Court cannot therefore favourably accept these two ill-founded requests.

Concerning restoration of the sum of 18,130,778.09 US Dollars which should correspond to the bank account balance of the deceased, i.e. 5,521,945.53 US Dollars plus 6% annual interest, in accordance with domestic law, it is appropriate to emphasise that the Republic of Liberia did not contest the said amount. As a defence, the Republic of Liberia did put forth an argument on foreclosure and on non-exhaustion of local remedies.

Whereas it shall be appropriate here to grant the request of the Applicant.

 

Regarding violation of right to information

The Applicant averred that she contacted the Central Bank (BCCI) for documents and information on other accounts which were owned by her late husband, but in vain, that such refusal constitutes violation of her right to information as provided for and enshrined in Article 9 of the African Charter on Human and Peoples’ Rights.

Article 9(1) of the said Charter provides that: “Every individual shall have the right to receive information”.

It was recalled above that only States, in their capacity as the principal subjects of international law, and signatories to international instruments establishing human rights, are liable to accusations of the human rights violation in question, but not natural or legal persons. In the instant case, BCCI, which has in its possession, and is required to provide the information on the bank accounts of the deceased, is not a party to the proceedings, and is not a State. Moreover, the information at stake under Article 21 of the African Charter on Human and Peoples’ Rights concerns the duty imposed on States to provide indispensable information reagrding life, health, security, education, culture and others, and not ordinary banking information which is governed by a private relationship between a legal person (i.e. a banking institution) and its client.

Very obviously, the facts alleged do not constitute in any way whatsoever violation of the right to information. The request thus made by the Applicant in that respect is ill-founded and is hereby dismissed.

 

Regarding Defendant’s requests as counter claims

C​oncerning legal fees

 

The Republic of Liberia requests that the Court ask the Applicant to pay to it 150,000 US Dollars to cover legal costs;

In the terms of Article 66 of the Rules of Procedure of the Community Court of Justice, ECOWAS the unsuccessful party shall bear costs;

The Court finds that the Applicant is not totally unsuccessful in the instant procedure;

This request is thus dismissed as ill-founded.

C​oncerning imposing a fine on Plaintiff Counsel

 

In the terms of Article 28 of the Rules of Procedure of the Community Court of Justice, ECOWAS: “Agents, advisers and lawyers appearing before the Court or before any judicial authority to which the Court has addressed letters rogatory, shall enjoy immunity in respect of words spoken or written by them concerning the case or the parties.”

The Republic of Liberia requests that a fine be imposed on Plaintiff Counsel for abuse of court process.

The Court finds that Plaintiff Counsel is not a party to the trial between the Republic of Liberia and the Applicant; he acts for and on behalf of his client, and in that respect, enjoys immunity.

Moreover, a fine is a sanction of a criminal nature which may not be imposed on the Applicant.

The Court therefore dismisses that request.

 

As​ to costs

The Republic of Liberia, being unsuccessful, shall, in compliance with the provisions of Article 66 of the Rules of Procedure of the Community Court of Justice, ECOWAS, bear the costs.

 


F​OR THESE REASONS


The Court,

Adjudicating in a public hearing, after hearing both Parties, in a matter on human rights violation, in first and last resort;

Dismisses the objection regarding lack of jurisdiction as raised by the Republic of Liberia;

Adjudges that the Court is competent to adjudicate on the case;

Dismisses the objection regarding foreclosure as invoked by the Defendant;

Declares that Mrs. Nancy Bohn-Doe’s action against the Republic of Liberia is admissible;

Adjudges that the cause of Mrs. Nancy Bohn-Doe is partly well-founded;

Adjudges that Mrs. Nancy Bohn-Doe’s right to property was violated by the Republic of Liberia;

Finds, on the other hand, that there is no violation of the right to information;

Orders the Republic of Liberia to pay the sum of 18,130,778.09 US Dollars to the administratrix of the intestate succession of the late Samuel Kanyon Doe;

Dismisses the requests concerning the sum of 148,196.50 US Dollars and the sum of USD$9,000,000.00 as claimed in damages;

Dismisses the counter claims made by the Republic of Liberia; Asks the Republic of Liberia to bear the costs.

 


AND THE FOLLOWING HE​REBY APPEND THEIR SIGNATURES:


 

1.     Hon. Justice Amoako Asante                                    Presiding

2.  Hon. Justice Gberi-Be Ouattara                                   Judge Rapporteur

3.  Hon. Justice Dupe Atoki                                              Member

 

Assisted by: Barrister Tony Anene-Maidoh                      Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 19 of 2016
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Bangra JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC

COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN AT ABUJA, IN NIGERIA

ON 15TH, DAY OF MAY, 2019

 

SUIT No: ECW/CCJ/APP/19/16

JUDGMENT No: ECW/CCJ/JUD/21/19

 

BETWEEN

SGT MIKAH RANGO &243 ORS                                - APPLICANTS

AND

FEDERAL REPUBLIC OF NIGERIA                              - RESPONDENT

 

COMPOSTION OF THE COURT

 

Hon. Justice Edward Amoako Asante                                - Presiding

Hon. Justice Dupe Atoki                                                      - Member

Hon. Justice Keikura Bangura                                              - Member

 

Assisted by Mr. Tony Anene-Maidoh, Esq.                   - Chief Registrar


JUDGEMENT


PARTIES

The Applicants are community citizens of Nigerian origin. The Respondent is the Federal Republic of Nigeria and a member state of the Community. The Applicants lodged an application at the registry of the Court on the 7th day of June, 2016.

B​ackground

By an initiating application dated 7th June, 2016 filed in the Registry of this Honorable Court, the Applicant in this suit commenced an action against the Respondent herein. Amongst other claims, the Applicant claim against the Respondent the following:

·   Dismissal of the Applicants from the services of the Nigerian Army without process.

·   That their said dismissal without arraignment, prosecution and sentence by a duly constituted Court Martial is illegal, unlawful null and void.

·   That the act of the Respondent constituted a violation of the Applicants’ right to fair hearing guaranteed under the provisions of Section 36 (1) of the Federal Republic of Nigeria 1999 as amended by the alteration, Article 7 of the African Charter on Human and People’s Rights, Article 8, 10, 11 (1) of the Universal Declaration of Human Rights

·   That the conduct of the Respondent constituted a gross violation of the Applicants’ rights to work under equitable and conducive environment as guaranteed by the provisions of Article 6 (1), 7(a) & (b) of the International Covenant on Economic Social and Cultural Rights and Article 15 of the African Charter on Human and People’s Rights.

·   That the act of the Respondent constituted a gross violation of the Applicants’ fundamental rights to work and freedom from unemployment as guaranteed by the provisions of Article 23 of the Universal Declaration of Human Right.

In view of the above stated violations the Applicants are claiming against the Respondent the following reliefs:

1.  A declaration that the dismissal of the Applicants as soldiers in the Nigerian Army some time in February 2016 by the Respondent without arraignment, prosecution and sentence by a duly constituted Court Martial is irregular, illegal, unlawful, null and void whatsoever as the act of the Respondent herein constitute a violation of the Applicants Fundamental Rights to fair hearing as stated in the provisions of the section 36 (1) of the 1999 Constitution of Federal Republic of Nigeria (as amended) Third Alteration Act , Article 7 of the African Charter on Human and People’s Rights, Article 8, 10, 11 (1) of the Universal Declaration of Human Rights.

2.  A declaration that the act of the Respondent herein is a gross violation of the Rights of the Applicants to work under equ​itable and conducive environment as guaranteed by the provisions of Articles 6 (1), 7(a) (i), (b) of the International Covenant on Economic Social and Cultural Rights, Article 15 of the African Charter on Human and People’s Rights.

3.  A declaration that the act of the Respondent is a gross violation of the Applicants Fundamental Rights to work and Freedom from unemployment as expressly guaranteed by the provisions of Article 23 of the Universal Declaration of Human and People’s Rights.

4.  An order of this Honorable Court directing the Defendant, its agents, organs, servants, privies or by whatsoever name called to immediately reinstate all the Applicants to their respective rank in the Nigerian Army.

5.  An order of this Honorable Court compelling the Respondent, its agents, organs, servants, privies or by whatsoever name called to pay over to all the Applicants their monthly salary and other allowances from the month of January 2016 until the date judgement is enforced in this suit.

6.  An order of this Honorable Court directing the Respondent, , its agents, organs, servants, privies or by whatsoever name called to pay over to the Applicants the sum of N1,000,000 (One million Naira) only each as general damages for the psychological and mental torture suffered by the Applicants as a result of their dismissal as soldiers in the Nigerian Army.

7.  An order of this Honorable Court compelling the Respondent, its agents, organs, servants, privies or by whatsoever name called to pay over to the Applicants each the sum of N2, 000,000 (Two Million Naira) only as aggravated and punitive damages that will serve as a deterrent to the Defendant.

8.  An order of this Honorable Court directing the Respondent to pay over to the Applicant the sum of N5, 000,000 (Five Million Naira) only being the solicitors fees and other incidental cost.

 

SU​MMARY OF FACTS

 Applicant’s Case

The facts as averred are that the Applicants (244 enlisted soldiers) were until their dismissal in 2016, soldiers in the Nigerian Army. They stated that some of them were stationed in the Nigerian Army School of Infantry in Jaji, Kaduna State whilst some were Rukubu Barracks in Jos, the Plateau State capital or on military assignment prior to their dismissal. That whilst serving, the Armed Forces Act regulated the terms and conditions of their service. That the Applicants enlisted into the Nigerian Army from periods ranging from 3 to 36 years.

The Applicants aver that some of them in Rukubu Barracks were given forms to fill by the Military Police Commander. That they were all drafted to the North east Geo- political Zone of the Respondent State to quell the dreadful Islamic Sect, Boko Haram in 2014. That they participated actively in this assignment especially on the attack of the 28th October, 2014 in the North East.

The Applicants aver that some of them were made to serve in that area for a period of two years whilst some spent periods ranging from six months to a year. That during this period they were denied communication with their families and further denied the monthly salary and allowances for six months (UNSPECIFIED).

That sometime in 2015 some of the Applicants were drafted to the Nigerian Army Training Centre in Niger States were they were further denied one month (UNSPECIFIED) salary and some of them were subjected to inhuman and regimental lifestyle.

That at various times during these assignments they encountered three military Commanders one of whom advised them to withdraw from the war theatre in the North East to Jos.

The Applicants aver that they were not provided sophisticated weaponry even after they demanded that the Respondent provide them with the same. That the Respondent however, proceeded to arbitrarily dismiss the Applicants shortly after their demands.

The Applicants aver that they were part of some soldiers re-absorbed into the Nigerian Army in 2015 and posted to the Command and Staff College in the Nigerian Army School of Infantry (NASI) in Jaji, Kaduna. That whilst there they were subjected to dehumanizing and ill treatment on the 5th January, 2016 the Commandant announced that the Respondent had posted the hitherto dismissed soldiers to the North-East. That even though they claimed to have been reinstated they were denied access to military facilities, letters of reinstatement were never issued and they were denied seven months’ salary to date.

The Applicants aver that the Chief of Administration asked them if there was any complaint with respect to their assignment to which some of them availed themselves. That the names of soldiers posted to the North-East were called and the identity cards seized without reason. That some soldiers were drafted to various Military formations the Applicants were orally dismissed without due regard to the Armed Forces Act.

The Applicants therefore are claiming the aforementioned reliefs.

 The R​espondent’s Case

The Respondent filed a defense in response to the allegation levied against them. In it the Respondent denied the allegation of facts as alleged by the Applicants. However, the Respondent made the following admission despite his denial:

·   That the Applicant were among ex-soldiers who were pardoned in August 2015 and reabsorbed into the Nigerian Army after completing their training

·   That those officers who completed their training in Jaji were posted back to the North-East flank

·   That the Applicants had been dismissed from the Nigerian Army because they had committed several acts of indiscipline and misconduct for which they were Court martialed and dismissed from the Army.

Further, to the above-mentioned admission by the Respondent, he also submitted a Preliminary Objection praying for the Court to dismiss the suit.

Prelimin​ary Objection

The Respondent raised a Preliminary Objection on the ground that:

1. That the Honorable Court lacked jurisdiction to try the application pursuant to the reliefs sought by the Applicant which borders on employment dispute already covered under the Nigerian Municipal Courts.

The import of this ground is suggestive of the requirement for the Applicant to exhaust local remedies.

 App​licant’s Response

The Applicant amended their reliefs sought by praying for certain orders and declarations pursuant to violation of rights enshrined in treaties ratified by the Respondent.

The Applicants argued that the Court is vested with jurisdiction pursuant to the Protocol of the Court as amended and those obligations accruing from treaties ratified by the Respondent. The Applicant relied on the jurisprudence of the Court in expounding on his argument therefore urged the Court to dismiss the Preliminary Objection as vexatious and frivolous but asks that the case be set down for hearing.

The Court has examined the ground for the Preliminary Objection so far advanced by the Respondent in support of his objection. The Court has also considered the response by the Applicants to the Preliminary Objection. On the strength of their submissions the Court is able to identify two keys issues which are of relevance for consideration and for determination by the Court. That is:

·   Whether this Court has jurisdiction to hear and determine this application as indicated in the Preliminary Objection

·   Whether exhaustion of local remedies is a condition precedent to access this Court

In response to the Applicants’ submission, the Respondent, the Applicants amended their reliefs sought and also prayed for other reliefs pursuant to their alleged human rights violation as enshrined in the treaties that have been signed and ratified by the Respondent. The Applicant further submitted that this Court has the mandate and is vested with the jurisdiction to hear and determine this application pursuant to Article 9 (4) of the amended Protocol. In addition he maintained that those obligations that accrue to Member States under treaties by reason of the fact that they have not signed such treaties but also have ratified them, gives them the onus to discharge any obligation under it.

The Court will now examine these issues for the determination seriatim.

Whet​her the Court has jurisdiction to hear and determine the case

The test criteria for the Court to admit any application that is before it or to assume jurisdiction to hear these applications are found in Article 9 (4) of the Protocol as Amended which provides that the Court has jurisdiction to determine cases of human rights violation that occur in any Member State. Before proceeding on the issue of jurisdiction the criteria test for admissibility of application by this Court in accordance with Article 9 (4) and Article 10 (d) of the Amended Protocol must be considered. Important among the criteria are those provided for in Article 10 (d) which states as follows:

i.     not be anonymous; nor

ii.     be made whilst the same mater has been instituted before another International Court for adjudication;

Article 9(4) of the Amended Protocol only states that there must be a violation right for which the application is brought before the Court for determination. Article 9 (4) sets the core mandate of the Court and Article 10 (d) (i) and (ii) of the Amended Protocol merely set out the conditions precedent to be met for the Court to admit an application. Where these criteria have been met the Court will declare such an application admissible.

The claim of the Applicants’ is for violation of their right to work and the right to fair hearing and are seeking several reliefs including declarations, directives, orders, compensation and costs of the action. The Respondent has denied all the claims and states clearly that the Court lacks jurisdiction to hear and determine the claims as they submit that it is a matter devoid of human rights violation and entirely under the purview of the Armed forces Act of Nigeria and the Constitution of the Federal Republic of Nigeria 1999 as amended.

The Court in several of its judgements has consistently held that its jurisdiction shall be upheld whenever an application before it invokes human rights violations arising from the provisions of Article 9 (4) of the Protocol of the Court as amended by the 2005 Supplementary Protocol which provides that: “The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State”: See Hissein Habre v Republic of Senegal ( ).

In the instant case, the Applicants alleged specifically Human Rights violations pursuant to Article 15 of the African Charter on Human and People’s Rights (ACHPR) and Article 6 (1) of the International Convention on Economic Social and Cultural Rights (ICESCR), all the other relevant human right instruments relating to the right to work are in pari materia with these provisions.

The Applicants in the instant case claim to have directly suffered from the alleged violations and as such are victims. The Court holds that mere allegation of human right is sufficient to invoke its jurisdiction. The criteria pursuant to the amended Protocol of the Court, Article 9 (4) which states that “The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State” has therefore been met by the Applicants. The Court notes that pursuant to Article 9 (4) of the Protocol of the Court as amended it has jurisdiction to adjudicate in a suit brought before it for the violation of human rights which occurred in the Member State particularly for those treaties ratified by Member States of the Community.

It is undoubtable that this Court has over the years dealt with series of cases bordering on jurisdictional issues. The Court has held in series of cases that a mere violation of human rights allegation is sufficient enough to invoke the jurisdiction of this Honorable Court. It was so held in Bakarre Sarr & 28 ors. v the Republic of Mali (2011)CCJ/JUD/09/12 where the Court held that mere allegation of human right is enough justification to invoke the jurisdiction of the Court. In the case of Hadijatou Mani Koraou v The Republic of Niger (2008) CCJ/JUD/06/08 the Court further strengthened its position on this. Equally so, Article 9 (4) of the amended Protocol states that the Court has the mandate to determine cases of human right violation occurring in any member state. This article is the operative article that underlies the human rights mandate of the Court. On this note the Court holds that it has jurisdiction to hear and determine this application that is before it.

In view of the above the Court will now examine the other issues for determination. On the question of whether the exhaustion of local remedy is a precondition and a requirement to access this Court as the Respondent rightly wanted this Honorable Court to believe. The Respondent in his defense averred that this Honorable Court lacks jurisdiction to try this application pursuant to the reliefs sought by the Applicants, which borders on employment disputes already covered by the Nigerian Municipal Courts. In furtherance of this argument he submitted his defense that the Applicants should have exhausted themselves of internal mechanism via Section 178 of the Armed Forces Act Cap A20 of the Laws of the Federal republic of Nigeria 2004. This issue has not been the major grounds of Preliminary Objection as submitted by the Respondent but it raises the issue of exhaustion of local remedies and should therefore not be left out unaddressed. It is on this note that the Court has decided to consider and determine the submission that was raised by the Respondent in his response to the Applicant’s case. On the requirement of the exhaustion local remedies, this Court has in its jurisprudence held in series of decided cases that exhaustion of local remedy is not a pre-condition to access this Court. In the case of Valentine Ayika v Liberia (2012) CCJ/JUD/09/12 is not a condition precedent to access this Court and this Court so holds.

After considering the ground for the Preliminary Objection and the responses from the Applicant, the Court is of the view that the Preliminary Objection is unfounded and not supported by any reasonable grounds.

The Court having considered and examined the submissions of the parties including the authorities relied on, the Court is of the view that it has mandate to hear and determine this application pursuant to Article 9 (4) and 10 of the Protocol as amended. In consequence thereof, this Court hereby declares that the application is admissible and also that it has mandate to hear and determine the application before it and the Court so holds.

ISSUE​S FOR DETERMINATION

The Court has to consider the following issues for determination:

a.  Whether the Applicants’ right to fair hearing was violated

b.  Whether the Applicants’ right to work was violated

a. Wheth​er the Applicants’ right to work was violated

The Right to work contemplates rights that are assessory to it which together they form the right to work. It includes among others the following:

·   Right to know the terms of engagement

·   Right to receive equal remuneration for equal job

·   Right to work in conducive environment

·   Right to avail the employee the opportunity to be heard in any disciplinary proceedings against him

·    Right to be protected from unlawful dismissal

The right to work as guaranteed by the under mentioned treaties expressly states that:

1.  Article 6 (1) of the ICESCR: “The States Parties to the present Covenant recognize the right to work, which includes the right of everyone​ to the opportunity to gain his living by work which he freely choses or accepts, and will take appropriate steps to safeguard this right.”

2.  Article 7 (a) & (b) of the ICESCR: “The State Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular, remuneration which provides all workers, as a minimum, with, fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work. (b) Safe and healthy working conditions.”

3.  Article 15 of the ACHPR: “Every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work.”

4.  Article 23 of the UDHR: “(1) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protect against employment. (2) Everyone without any discrimination has the right to equal pay for equal work. (3) Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity and supplemented, if necessary, by other means of social protection.

The Court will now proceed to quickly deal with the rights assessory to the right to work.

Right to kn​ow the terms of engagement

The Applicant on the Right to know the terms of engagement averred that upon their reinstatement into the Armed Forces of Nigeria, they were neither given a letter of re-instatement nor were they informed about their condition of work. This was not rebutted by the Respondent. Facts that are usually not denied by parties to an action are deemed to have been admitted. On this note the right for the Applicants to know the terms of their engagement was breached and subsequently violated.

Right ​to receive equal remuneration

On the issue of Right to receive equal remuneration for equal work done the Applicants averred that they were not receiving salary for a period of seven months and also their allowances were paid for this period. Of equal strength is the allegation that the Applicants’ were dismissed without them being paid their allowances and salaries for a period of seven months and without end of service benefits. The Respondent did not rebut this averment anywhere in his defense. During cross examination of the Applicants’ witness, where the Respondent had the opportunity to rebut this allegation he also failed to so. Therefore the facts as alleged are deemed to have been admitted. To this end deprivation of the Applicants’ to earn salaries and allowances in respect of work they have so far done amounts to a breach on their right to receive equal remuneration for work done and such breach will constitute a violation.

Right t​o work in conducive environment

The Applicants further to their averments, claim that during the period of their work they were denied communication with their families and that the working environment was not conducive. This also was not denied by the Respondent which also constitutes an admission and violation of the right to work in a conducive environment.

On the totality of the evidences so far adduced by the Applicants including the testimony of Applicants’ witness before the Court during examination-in-chief and cross-examination by the Respondent Counsel, the allegation remain unrebutted and as such confirmed to be credible and admitted.

The Court notes that any failure for any party engaged in employment to enforce any one of the above stated rights can constitute a breach and therefore an act of violation of such rights. The Court observes that the Applicants in their initial application submitted that their right to work had been violated contrary to Article 6 (1), 7(a) (i) & (b) of the International Convention on Economic, Social and Cultural Rights and Article 15 of the African Charter on Human and People’s Rights (ACHPR) and Article 23 of the UDHR.

Requiremen​t to comply with the applicable law

In the service of the Armed Forces of Nigeria an officer can only be dismissed if the dismissal is in accordance with the provisions of the Armed Forces Act of the Federal Republic of Nigeria. Amongst which, Section 32 of the said Act provides as follows:

1.  Unless otherwise prescribed by this Act, if an enlisted person becomes entitled to be discharged with all convenient speed; but until discharged, he shall remain subject to service law under this Act.

3. Except in pursuance of a sentence of a court-martial under this Act, an enlisted person shall be discharged unless his discharge has been authorized by order of the respective Service Chief in accordance with regulations made under this part of this Act.

4.  An enlisted person shall be given on his discharge a certificate of discharge containing such particulars as may be prescribed, provided that, an enlisted person who is discharged within six months of the date of attestation shall not be entitled to receive a certificate of discharge.

For the employees to summarily and arbitrarily remove or dismiss the Applicant without following due process of the law when the Act so provides will amount to a violation of his rights.

The case of the Applicant is that they were not given the opportunity to be heard before a neutral and duly constituted Court Martial in any charge that is brought against them and if found guilty the order of sentence of the Court will be implemented accordingly. This follows the case of the reported dismissal without due process, as already stated, which is contrary to the provisions of Section 178 of the Armed Forces Act the Federal Republic of Nigeria. To these allegation the Respondent did not advance any legal argument and or present evidence to rebut the claim by the Applicant. From the evidences the following issue were identified as having been agreed by the Respondent and admitted in his pleadings.

The Respondent did not rebut the allegation of the Applicant and therefore confirmed

·   That the Applicants were amongst the soldiers that were dismissed from the service of the Nigerian Armed Forces but were later pardoned in 2004

·   that the Applicants were subsequently reinstated into the Nigerian Army after their first dismissal but without a letter of employment signifying their tenure of engagement

·   according to the Applicants they were subsequently de-kitted, their guns withdrawn, their identity cards and chased out of the Barracks without due process as laid down in Section 32 and Section 178.

·   They were not given any opportunity to be heard

The main issue here for the Court to consider, on determination of the right to work is the manner in which the Applicants were dismissed. The allegation that they were chased out and dismissed from the service of the army without being the opportunity to be heard remain irrebutable throughout the proceedings. For the employees to be summarily and arbitrarily removed or dismissed by the Respondent without following due process of the law especially so when there is an enabling Act that governs such conduct amounts to a breach of those provisions. However, the Court is mindful that there are provisions in the Armed Forces Act that provided legal framework for settlement of complaints internally, the relevant provision is Section 32 which provides as follows:

1. Unl​ess otherwise prescribed by this Act, if an enlisted person becomes entitled to be discharged with all convenient speed; but until discharged, he shall remain subject to service law under this Act.

3. Except in pursuance of a sentence of a court-martial under this Act, an enlisted person shall be discharged unless his discharge has been authorized by order of the respective Service Chief in accordance with regulations made under this part of this Act.

4.  An enlisted person shall be given on his discharge a certificate of discharge containing such particulars as may be prescribed, provided that, an enlisted person who is discharged within six months of the date of attestation shall not be entitled to receive a certificate of discharge.

The defense of the Respondent was that the Armed Forces Act has procedures for internal complaint mechanism as provided for by the rules to which the Applicants were to avail themselves of but failed to comply and therefore they ought not to be heard before this Court. The principle of fair hearing requires that parties involved in the proceedings must be given an opportunity to be heard. This is a derivative from the principle of audi alteram partem which requires the other side must be heard and includes:

·   The Right to be heard before an independent, competent tribunal

·   The Right to be represented by Counsel of your choice

To violate the principle of fair hearing in any tribunal or proceedings or decisions will have the consequences of making such decisions that may emanate from such hearing null and void of no legal effect. Therefore failing to observe the Right to fair hearing will amount to a breach. In the instant case the manner in which the dismissal of the Applicants were done clearly speak to the fact that the Respondent were in breach of the right of the Applicant to fair hearing. Especially so when the Applicant maintained that they were de-kitted, their identity cards withdrawn from them, their guns were withdrawn and then chased out of the barracks without given them any opportunity to be heard or paying them their arrears of salaries, allowances and end of service benefits. Under these conditions the Applicants left the services hurriedly and arbitrarily without them being given the opportunity to be heard. The issue here is whether in the circumstances as explained by the Applicants they were bound to refer to the internal complaint settlement mechanism in accordance with the Section of the Armed Forces Act to which the Respondent is seeking to rely on as a defense.

The Court notes that the Applicant in their bid to reach an amicable settlement engaged the services of the lawyer who wrote to the Army Chief about their complaint but there was no response. On this note even though it is mandatory that the Applicants must comply with the internal rules they are at liberty to come before this Court for the violation of their human rights because they took advantage of the proceedings and wrote a letter of complaint but there was no response. So therefore the defense by the Respondent that the Applicants failed to comply with the internal rules of procedure cannot hold because they did not admit/deny the receipt of the letter in their defense.

It is therefore without doubt that the Respondent, throughout his defense, never rebutted the claim that by and the averments that the Applicants were soldiers in the Nigerian Army, they failed also to rebut the loss of earning which is a condition to the right to work, all these are covered by the provisions of Article 6 (1), 7(a) (i) & (b) of the ICECR, Article 15 ACHPR and Article 23 of the UDHR.

The Court notes that the Applicants relied heavily on the above mentioned provisions in order to establish their claim of a violation of right to work. They also have relied on the following case of MOHAMED EL TAYYIB BAH V REPUBLIC OF SIERRA LEONE (2013) in which the Applicant was dismissed from the service of the Sierra Leone police force without being given the opportunity to be heard. See also the case of Dr. Rose Mbatomon Ako v West African Monetary Agency & 5 Ors. (2013) CCJ/JUD/02/13.

From the observation noted above it is clear to the Court that the Applicants right to work has been breached by the consistent act of the Respondent and therefore constitutes a breach of that right and the Court holds that the Applicants’ right to work were violated.

 

C. Whether the Applicants right to fair hearing was violated

·   The Right to be heard before an independent, competent tribunal

·   The Right to be represented by Counsel of your choice

The Court notes that Article 7 of the ACHPR, Article 8, 10, UDHR guarantees right to fair hearing. It provided thus:

Article 7 of the ACHPR:

1.  Ever​y individual shall have the right to have his cause heard. This comprises:

1.  The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

2.  The right to be presumed innocent until proved guilty by a competent court or tribunal;

3.  The right to defense, including the right to be defended by counsel of his choice;

4.  The right to be tried within a reasonable time by an impartial court or tribunal.

2.  No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Article 8, 10 and 11 of the UDHR:

·   Everyone ha​s the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

·   Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

·   (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

The Applicant submits that pursuant to Article 7 of the ACHPR and Article 8, 10, 11 of the UDHR their rights to fair hearing and their presumption of innocence were further breached by the Respondent were further breached and constitute a violation of the right to fair hearing. Given particulars of the alleged breach the Applicants claim for their violation of the right to fair hearing. In support of the allegation they averred that they were dismissed from the service of the Nigerian Army without them being brought before a Court Martial duly constituted for that purpose as is required by Section 32 of the Armed Forces Act as already being referred to.

The compliance with this proceeding is a pre-condition to fair dismissal because in the proceedings an opportunity must have been given to the Applicant to be heard. On this note and based on the references and authorities stated and relied on by the parties, this Court is of the opinion that the Applicants’ Right to fair hearing was also compromised and breached and therefore such conduct constitutes a violation of the Applicants’ Right to fair hearing and the Court so holds.

 

De​cision

The Court having considered the written submissions of either party and listened to the oral evidences of the Applicant including the cross-examination of the Applicants’ witness by the Counsel for the Respondent, the Respondent having failed to rebut the averments of the Applicants’ and his witness the claim of the Applicant is deemed to have been admitted. On the totality of the evidences of the parties the Court decides as follows:

 

DECL​ARATIONS

1.  The Court declares that it has jurisdiction to hear this suit same being premised on an alleged violation of human rights.

2.  The Court declares that the Applicants’ right to work was violated by the Respondent

3.  The Court declares that the Applicants’ right to fair hearing was violated by the Respondent

O​RDERS

4.  That the Respondent shall appoint a Committee to assess the arrears of allowances, salaries and end of service benefits due to the Applicants’ and pay to them without any delay in any case within a period of two months from the date of this order.

5.  That the Respondent should pay the sum of Two Million Naira (N2, 000,000) as cost of the action and Two Million Naira (N2, 000,000) each to the Applicants as damages for unlawful dismissal.

Thus pronounced and signed on 15th day of May, 2019 in the ECOWAS Community Court of Justice Abuja, Nigeria.

 

AND T​HE FOLLOWING HAVE APPENDED THEIR SIGNATURES:

 

Hon. Justice Edward Amoako Asante, Presiding

Hon. Justice Dupe Atoki, Member

Hon. Justice Keikura Bangura, Member

Assisted by Mr. Tony Anene-Maidoh, Esq., Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 32 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Bangra JA
Search summary

 

 

 

 

IN THE COMMUNITY COURT OF JUSTICE

OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN AT ABUJA, NIGERIA.

ON WEDNESDAY, THE 15th DAY OF MAY, 2019

SUIT NO: ECW/CCJ/APP/32/17

JUDGMENT NO: ECW/CCJ/JUD/20/19

 

BETWEEN

1. REGISTERED TRUSTEES OF ASSOCIATION OF FORMER TELECOM EMPLOYEES OF NIGERIA

2.   PASTOR OLUTI AREMU GABRIEL (PRESIDENT ASSOCIATION OF FORMER

TELECOMS EMPLOYEES OF NIGERIA & &17, 101 OTHERS                                                               APPLICANTS

AND

1. FEDERAL REPUBLIC OF NIGERIA.                                                                                                 RESPONDENTS

2. ATTORNEY GENERAL OF THE FEDERATION.

 

COMPOSITION OF THE COURT

Hon. Justice Edward Amoako ASANTE                        - Presiding

Hon. Justice Dupe ATOKI                                            - Member/Judge Rapporteur

Hon. Justice Keikura BANGURA                                   - Member

Assi​sted by

Athanase ATANNON                                                    - Deputy Chief Registrar

REP​RESENTATION TO THE PARTIES

1. M, N. Mohammed

2. Michael Eleyinmi                                                       -For the Applicants.

3. Olamilekan Joseph

4. Seidu Alfa

5. Abdullahi Abubakar                                                  - For the Respondents


JUDGMENT


This is the judgment of the Court and Parties were heard in the open Court.

 


 

PARTI​ES


The 1st Applicant is a registered non-governmental entity incorporated under the laws of Nigeria with its registered address at No. 6, Wuse Abuja, or Powa international Market, Block K, Suite 5, check point Bus stop Nyanya, Abuja. The 1st Applicant has instituted this action in a representative capacity for and on behalf of members of its association.

The 2nd Applicant is a disengaged staff of NITEL/MTEL an agent of the 1st Respondent and president of the Incorporated Trustees of Association of Former Telecoms Employees of Nigeria NITEL/MTEL, who was on a permanent and pensionable employment prior to his disengagement.

The 3rd to 17,101 Applicants are individual disengaged Staff of NITEL/MTEL who were also on a permanent and pensionable employment of the 1st Respondent.

The Applicants are all Nigerians and community citizens within the meaning of Article 1 of the 2005 Protocol on the ECOWAS Community Court.

The 1st Respondent is the Federal Republic of Nigeria, a sovereign state of the Community, while the 2nd Respondent is an Agent of the 1st Respondent.

 


SUMMARY​ OF FACTS


 

1.  The Applicants in their capacity as permanent and pensionable staff of the Respondent by an originating application filed at the Registry of the Court on the 22nd August, 2017, instituted this action claiming all their retirement and disengagement benefits in accordance with the Respondent’s constitution and several Articles of the African Charter on Human and Peoples’ Rights (ACHPR).

2. The Applicants’ allege that in 2006, they were illegally disengaged from active service and sequel to an advert by the Respondent’s agent, the Bureau for Public Enterprise (BPE) sometime in year 2012, NITEL/MTEL was privatized and sold out and its non-core assets were sold alongside some properties belonging to the Applicants.

3. That NITEL/MTEL became liquidated through the instrumentality of the Federal High Court vide a guided liquidation in which the said Court appointed a liquidator for the Respondent. That in the liquidation proceeding, the Applicants submitted their claims to the liquidator appointed to sell all the properties of NITEL/MTEL owned by the Respondent. Despite the submission of claims, the said entitlements/benefits have remained unpaid till date.

4. The Applicants contend that they are legally entitled to several allowances to wit; life pension, applicable to all categories of pensionable staff of NITEL/MTEL who have worked above 10 years, redundancy allowance after disengagement, repatriation allowance, insurance facility, payment of October 2006 salary/house rent allowance to the said disengaged staff, payment of three (3) month’s salary in lieu of notice and compensation for the untold hardship since year 2006 in line with the conditions of service provided under sections 173 (1) & (2), 210 of the 1999 Constitution of the Federal Republic of Nigeria, and Articles 24, 4, 5, 6, 7, 12, 13,14, 15, 17(2) & (b), 18 (2), 19, 20, 21, 22, 24, 25, 27, 29 (7), 45 (1), 60 & 61 of the African Charter on Human and Peoples’ Rights. The Applicants affirmed that the Respondent has only paid them five (5) years pension buy out, as against the above mentioned entitled claims.

5.  That by a letter dated 21st April, 2017, an agent of the Respondent known as Pension Transitional Arrangement Directorate (PTAD), wrote to the Applicants directing them to submit their documents for monthly pension payment only without including the numerous entitlements/benefits submitted to the liquidator.

6. The Applicants further claimed that they are entitled to the sum of 1.2 Billion Naira being the worth of 250 buses belonging to them which was taken over by the Respondent. The Applicants aver that during their years of active service, they formed a social cooperative wherein monthly contributions were deducted from their salaries to which they built canteens across the 36 states of the federation. That the said canteens were sold by the Respondent with no compensation paid to the Applicants.

7. That most of the landed properties in which the said NITEL/MTEL were situate across the states belonged to some of the Applicants and same was sold by the Respondent without compensating the Applicants despite repeated demands. That the Supreme Court’s decision for the Applicant’s to be paid 5 years pension buy out is unconstitutional and contrary to international laws of human rights. That the acts of the Respondent in failing to pay to the Applicants all their entitlements amounts to a flagrant violation of their human rights.

8. WHERE​UPON THE APPLICANTS SEEK THE FOLLOWING RELIEFS/ORDERS:

1.  A DECLARATION, that 5 years pension buyout, Respondent paid to the Applicants as their entitlement, is a flagrant violation of a continuous right of the Applicants to section 173, 1,2,3, & 210 of the 1999 Constitution of Nigeria and the Articles mentioned above which provide for life pension to the Applicants and other entitlements.

2.    A DECLARATION that the purported request by the Pension Transmission Arrangement Directorate (PTAD) agent of the Respondent, requesting the Applicants to submit their documents for a monthly payment of pension without other entitlement claims of the Applicants herein pleaded in this application is a flagrant violation of their rights as provided in sections 173, 1, 2, 3 & 210 of the 1999 Constitution of Nigeria and the Articles mentioned above.

3.  A DECLARATION that the Applicants’ are entitled to 200 Billion Naira only, as their pensionable retirement benefit payable in bulk since the NITEL/MTEL have being sold by the Respondent who employed the Applicants as workers under permanent and pensionable conditions of service as provided in section 173, 1, 2, 3 & 210 of the 1999 Constitution of Nigeria, and not only monthly pension as prescribed by the Respondent.

4.  A DECLARATION that the Applicants are entitled to be paid their federal mortgage contribution fund deducted at source by the Respondent from their salary when in active service of the Respondent.

5.  A DECLARATION that the Respondent’s sale of NITEL/MTEL along with the Applicants entitlement namely (a) 250 buses worth 1.2 Billion Naira only, (b) life insurance known as workman compensation for 17, 101 workers of 1st Respondent worth 17, 639 Billion Naira Only. (c) Landed property where the facilities of NITEL/MTEL of the Respondent was situated and that compensation which should be paid to members who own this property ought to be paid to the Applicants.

6.  A DECLARATION that the Applicants are entitled to their claims/rights entitlements submitted to the liquidator appointed by the Respondent to sell NITEL/MTEL.

7.  AN ORDER compelling the Respondent to pay all the Applicants entitlements prayed in Paragraphs 1, 2, 3, 4, 5 & 6 above.

8.  General damages of 2 Billion Naira only to the Applicants for untold hardship

9.  Cost of litigation N10 Million Naira only.

10. And any other order this Court can make in the circumstances.

9. The Respondent filed a preliminary objection challenging the jurisdiction of the Court contesting that the subject matter of the dispute is an employment issue and is also statute barred as the Applicant did not initiate this action since 2012. However, on the date set for hearing, 24th January, 2019, the Respondents were not in Court to move their application. Consequently, the said preliminary objection was dismissed and the matter was slated to 5th March 2019 for judgment. The Respondents have however not file their defense to the Applicants’ application.

ISS​UES FOR DETERMINATION.

1.  CONSIDERING THE PROVISIONS OF ARTICLE 9 (4) OF THE 2005 SUPPLEMENTARY PROTOCOL AS WELL AS ARTICLE 14 OF THE AFRICAN CHARTER, WHETHER THIS COURT IS COMPETENT TO ENTERTAIN THIS SUIT AS CONSTITUTED.

2.  WHETHER IN LIGHT OF THE TOTALITY OF FACTS AND EVIDENCE ADDUCED, THE APPLICANTS HAVE SUFFICIENTLY ESTABLISHED THEIR CASE TO GROUND THE RELIEFS SOUGHT.

CONSIDERING THE PROVISIONS OF ARTICLE 9 (4) OF THE 2005 SUPPLEMENTARY PROTOCOL AS WELL AS ARTICLE 14 OF THE AFRICAN CHARTER, WHETHER THIS COURT IS COMPETENT TO ENTERTAIN THIS SUIT AS CONSTITUTED.

10. The human rights competence of this Court is specified under Article 9(4) of the 2005 Supplementary Protocol on the Court which provides:

“The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State”.

In BAKARE SARRE V MALI (2011) CCJELR pg. 57, the court stressed that:

“Once human rights violations which involves international or community obligations of a member state is alleged, it will exercise its jurisdiction over the case.”

Similarly, In Kareem Meissa Wade v. Republic of Senegal, ECW/CCJ/JUD/19/13, at pg. 259 Para. 95 (3), this court held that:

“Nevertheless, that simply invoking human rights violation in a case suffices to establish the jurisdiction of the Court over that case.

Also, in Mamadou Tandja (2010) CCJELR pg. 109 & Bakare Sarre & 28 Ors v. Mali (2011) (CCJELR) pg. 57 the court held that:

“Once a human rights violation which involves international or community obligations of a member state is alleged, it will exercise its jurisdiction over the case.”

11. The Applicants claim relates to the non-payment of their pension and other entitlements as well as other forms of compensation on properties in which they claimed to have acquired during the course of their active service to wit; redundancy allowance, repatriation allowance, insurance facility, October 2006 salary/house rent allowance, three (3) month’s salary in lieu of notice, full pension benefit as well as compensation for the untold hardship suffered since 2006, landed property upon which some of the zonal offices were situate, 250 buses allegedly purchased with pensioners monies, contributory housing funds deducted from their monthly salaries and building of canteens in all the 36 locations where the NITEL/MTEL offices were situated. In reinforcing their claims, the Applicants placed reliance on Articles 4, 5, 6, 7, 12, 13, 14, 15, 17(2) & (b), 18 (2), 19, 20, 21, 22, 24, 25, 27, 29 (7), 45 (1), 60 & 61 of the African Charter as well as certain provisions of the Respondent’s 1999 Constitution (as amended).

12. For purposes of clarity, the above articles relate to the right to life, respect for dignity, right to liberty, right to be heard, freedom of movement, right to property, right to work, right to participate in the cultural life of the community, right of a family to be assisted by the state, right to equality, right to existence, right to dispose of wealth and natural resources, right to economic, social and cultural development, right to national and international peace and security, right to general satisfactory environment, the respect of rights and freedoms contained in the Charter, duties of individual towards his family, society and state and the duty to preserve and strengthen positive African cultural values respectively.

13. In considering the facts of the present application vis-à-vis the provisions relied upon, it is apparent that the bone of contention is alleged infringement on the Plaintiffs’ physical assets acquired while in the service of the Respondent and non- payment of their emoluments and retirement benefits, in that regard the Court finds that the only relevant article from the above referred articles is Article 14 which deal with the right to property.

Article 14 of the African Charter on Human and Peoples’ Rights provides:

“The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”

14.  In determining whether the Applicants claim entails property rights it is imperative to ask the question what is property? In other words do all the claims of the Applicant qualify to be classified as property?

In CENTRO EUROPA 7 S.R.L. AND DI STEFANO v. ITALY (Application no. 38433/09)

JUDGMENT STRASBOURG 7 June 2012, the ECHR held that:

“In considering the provisions of Article 1 of Protocol No. 1 of the European Court of Human Rights, the concept of property or possession is very broadly interpreted. It covers a range of economic interests which include: movable or immovable property, tangible or intangible interests, such as shares, patents, an arbitration award, the entitlement to pension, the right to exercise a profession, a landlord’s entitlement to rent, the economic interests connected with the running of a business.”

15. Protocol 1 Art.1 of the European Convention on Human Rights provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

It is not in dispute that physical assets like vehicles, buildings, and intangible assets such as monies are classified as property. However, it is imperative for the Court to determine whether pension can be classified as property right to bring the Applicants claim within the purview of Article 9 (4) of the 2005 Supplementary Protocol on the Court and Art 14 of the ACHPR.

16. The Question to ask at this point is what constitutes pension?

The Black’s Law Dictionary, Ninth Edition, defined pension as:

“A fixed sum regularly paid to a person or to the person’s beneficiaries by an employer as a retirement benefit.”

The United States legal Definition defines Pension as:

“A payment benefit many workers receive from their employers upon retirement. There are two main types of pensions- a defined benefit plan and a defined contribution plan. Under a defined benefit plan, the benefit that an employee receives is normally based on the length of employment and the wages that were earned. Each employee does not have a separate account in these programs, as the money to support the pensions is generally administered through a trust established by the employer. In a defined contribution plan, the employer makes regular deposits into an account established for each employee. The employee is not guaranteed to receive a specified regular payment during retirement but only the amount in the account.”

17. It follows from the above that pension is a benefit that vests on an employee from an employer under a defined plan based either on length of years of service or a contribution by the employee which becomes payable after retirement. In the instant case, the monthly contributions by the Applicants as claimed can therefore be classified as pension.

The next question to ask is whether pension is classified as property. Many judicial pronouncements abound where various international courts have held that pension is property.

18. In the case of Azinas v. Cyprus, JUDGMENT STRASBOURG 20 June 2002, the Applicant was a former senior public official who had been stripped of pension rights following a criminal conviction. He argued that the contributions he had paid during his 20 years of service and his employers’ undertaking to finance a pension, together with his benefits and pension amount, constituted possessions for the purposes of Article 1 of Protocol no. 1. The Court noted that:

“The Applicant when entering the public service in Cyprus, had acquired a right which constituted a possession within the meaning of Article 1 of Protocol no. 1.”

In the case of Wessels-Bergervoet v. the Netherlands (Application no. 34462/97) JUDGMENT STRASBOURG 4 June, 2002, the European Court of human rights confirmed that:

“The Applicant’s rights to a pension under the General Old Age Pensions Act could be regarded as a ‘possession’ within the meaning of Article 1 of Protocol No. 1”.

19. Similarly, in FIVE PENSIONERS V. PERU Judgment of February 28, 2003 Series C NO. 98, The Applicants in this case were state employees and had retired after working for at least 20 years. After their retirement, a Peruvian state institution suspended payment of the Applicants and reduced 78% of the pension amount without any prior notice or explanation. The Inter-American Court of Human Rights In its Judgment of 28 February 2003, held that:

“By arbitrarily modifying the victims' pensions and by not executing the judgments of the Constitutional and Social Law Chamber of the Peruvian Supreme Court of Justice until almost eight years after they had been delivered, the State violated both the right to property (Article 21 ACHR) and the right to judicial protection (Article 25 ACHR) of the American Convention with respect to the above named individuals.”

In WIECZOREK v. POLAND, (Application no. 18176/05) Judgment of 8 December 2009, the ECHR held that:

“Article 1 of Protocol No. 1 to the Convention does not guarantee, as such, any right to a pension of a particular amount. However, where an individual has an assertable right under domestic law to a contributory social insurance pension, such a benefit should be regarded as a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements.”

20. This Court find persuasive the above decisions of both the Inter-American court of Human rights and especially the European Court of Human Rights which recognize pension as a property based on application of Article 1 of Protocol No. 1 to the European Convention which is in pari material to Article 14 of the African Charter on Human and Peoples’ Rights

In light of the above, the Court holds the view that pension is property which can be vested on an individual the denial of which therefore constitutes a violations of Right to property within the context of Article 14 of the African Charter on Human and Peoples’ Rights.

Following from the foregoing factual and legal considerations the Court hold that it is imbued with the requisite competence to admit this application as it is founded on alleged violation of human rights to property contrary to Art 14 of the ACHPR. The preliminary objection of the Respondent is hereby dismissed.

W​HETHER IN LIGHT OF THE TOTALITY OF FACTS AND EVIDENCE ADDUCED, THE APPLICANTS HAVE SUFFICIENTLY ESTABLISHED THEIR CASE TO GROUND THE RELIEFS SOUGHT

21.  The Applicants averred that they are permanent and pensionable staff of NITEL/MTEL an agent of the Respondent who made monthly contribution towards their pension. That sometime in 2006, following an advert by the Respondent’s agent- the Bureau for Public Enterprise (BPE), the said company was privatized and sold out along with the non-core assets and some properties bought from the Applicants’ pension contribution.

22. The Applicants’ alleged that they were disengaged by the Respondent after the privatization of the said NITEL/MTEL. That being on a permanent and pensionable employment prior to the disengagement, they are entitled to all their benefits in full, a list of which was filed with the liquidator appointed by the Federal High Court on behalf of the Respondent.

23. The Applicants averred further that since their disengagement in 2006, they have been in continuous struggle to secure all their retirement/disengagement benefits from the Respondent which has proved abortive despite repeated demands.

24. The Applicants maintained that they are legally entitled to several allowances which include life pension, applicable to all categories of pensionable staff of NITEL/MTEL who have worked above 10 years, redundancy allowance after disengagement, repatriation allowance, insurance facility, payment of October 2006 salary/house rent allowance to the said disengaged staff, payment of three (3) month’s salary in lieu of notice and compensation for the untold hardship since year 2006 in line with the conditions of service provided under section 173 (1) & (2), 210 of the 1999 Constitution of the Federal Republic of Nigeria, and the Articles 24, 4, 5, 6, 7, 12, 13, 14, 15, 17(2) & (b), 18 (2), 19, 20, 21, 22, 24, 25, 27, 29 (7), 45 (1), 60 & 61 of African Charter on Human and Peoples’ Rights.

25. Even though the Respondent did not file a defense to the action, the Applicants are not automatically entitled to judgment. The Court will rely on the merit of the case as the Applicants must nevertheless prove their case. See Chude Mba v. Republic of Ghana ECW/CCJ/JUD/10/13. The burden of proof therefore rests on the Applicant who must establish the violations as claimed as he who alleges must prove. The legal burden of proof is indeed the acid test applied in arriving at a decision in any particular case. As a matter of principle, the burden of proof lies principally on the party who stands the chance of losing where such evidence is not presented. In emphasizing the significance of proof, the Court in FEMI FALANA & ANOR V. REP OF BENIN & 2 ORS (2012) ECW/CCJ/JUD/02/12 pg. 34, held that:

“As always, the onus of proof is on a party who asserts a fact and who will fail if that fact fails to attain that standard of proof that will persuade the court to believe the statement of the claim”.

In DAOUDA GARBA V. REPUBLIC OF BENIN (2010) CCJELR Page 12.Para 34 & 35, the court held that:

“cases of violation of human rights must be backed by indications of evidence which will enable the Court to find that such violation has occurred in order for it to prefer sanctions if need be.”

See also SIKIRU ALADE V. FRN ECW/CCJ/JUD/10/12 (2012) CCJELR.

26. The Court will now examine each claim of the Applicants to determine whether a case of violation has been made against the Respondent.

27. Allegation of non-payment of Life Pension:

The Applicants averred that as pensionable staff, all categories of staff who have worked above 10 years are entitled to pension for life as provided in the 1999 constitution of the Respondent. They however claimed that they were paid 5 years buy out instead of life pension. To succeed in a claim of pension, the Applicants must establish as a fact that they are (1) employees of the Respondent who are (2) entitled to pension and lastly the amount they are entitled to. To support this claim, the Applicants filed the letters of appointment containing the condition of service of the 2nd Applicant and 2 other Applicants at pages 472 and 473 of the originating application together with correspondence exchanged between the (BPE) on March 23, 2012 and the Chairman of Association of Former Telecoms Employee of Nigeria. Of particular relevance is the last paragraph of the said letter where the Bureau of Public Enterprise said “you are also aware that all NITEL/MITEL staff had been disengaged and paid all their terminal benefits including 5 years pension buy out as agreed with your labour union, notwithstanding, some residual issues are still being treated”.

28. Also filed is a letter written to the Liquidator for the payment of 184.139 Billion Naira as outstanding pension payment for the entire 17,101 Applicants.

The above documents support the status of the Applicants as employees and pensioners and the acknowledgment of the Respondent of their obligation to that effect. Finally it is instructive that the Respondent did not contest the status of the Applicants as its employees and pensioners in its preliminary objection, rather its objection was premised on the lack of jurisdiction of the court and that the matter was statute barred. It is trite law that facts not denied is deemed proved. Based on the fact that the Respondent did not contest that Applicants are its pensionable employees and other documents from BPE and PTAD recognizing the Applicants as pensioners the Court holds that the Applicants have proved that they are employees of the Respondent entitled to life Pension.

With regards to the 3rd condition of proof of entitlement, the allegation of the Applicants is that a 5 years pension buyout paid by Respondent as their entitlement, is a flagrant violation of a continuous right of the Applicants to section 173, 1, 2, 3, & 210 of the 1999 Constitution of Nigeria which provides for life pension to the Applicants and other entitlements. Consequently they claim the sum of 200 Billion Naira only, as their pension benefit payable in bulk more so that NITEL/MTEL having been sold by the 1st Respondent is no longer a going concern. Additionally, as workers under permanent and pensionable conditions of service provided in section 173, 1, 2, 3 & 210 of the 1999 Constitution of Nigeria, payment of monthly pension as proposed by the Respondent is a violation of their right.

The Court notes that the Applicants have not supported the claim of 200 Billion with any documentary evidence. The burden of proving entitlements normally rests on the claimant where the claimant has better access to the required evidence to prove such entitlement. Where however the employer or the Defendant has sole control of the information required to prove the claim, the burden of proof shifts from the Claimant to the Defendant. In ESTATE OF BARTON V. ADT SECURITY SERVICES PENSION PLAN No. 13-56379 (9th Circuit, April 2016), the Court held that:

“Though the claimant bears the burden of proving entitlements, this burden must shift where the defending entity solely controls the information that determines entitlement leaving the Claimant with no meaningful way to meet his burden of proof.”

29. It follows therefore that once the claimant makes out a prima facie case of entitlement to pension, by proof of employment but lacks access to the key information needed to substantiate his claim same being in the control of Respondent, such claim cannot fail due to being unsubstantiated. This is more so where there is no indication that the employees were informed at the time of employment to keep record of their contribution for retirement. It is a recognized fact that salary records and computations matrix are in the normal cause of events in the custody and preserve of the employer in this case the Respondent who unfortunately neglected to put up a defense. The burden to provide records of the pension entitlement of the Applicant having shifted to the Respondent, the Applicants are exonerated from proving their entitlement.

30. The Court notes from the list of some of the pensioners or disengaged staff on page 622 to page 777, 779 &787 of the originating application that all Applicants are not on the same grade level neither is the years of service the same. Life pension becomes payable after 10 years of service. In that wise a generic pension payment cannot be drawn up. It is therefore not possible for this court to determine or compute the actual amount due to each Applicant in the absence of further documents.

31. As already pointed out above, pension is money earned and a property right vested in the employee based on the number of years of service. Based on the privatization scheme, all the Applicants were compelled to exit the service prematurely with the attendant consequences that some of the Applicants may be denied pension entitlements having not attained the statutory year in service for life pension benefits.

Any person that takes up a pensionable employment is assumed to have a legitimate expectation for the payment of pension upon retirement therefrom.

The concept of legitimate expectation is premised on fairness and reasonableness to a situation where a person has an expectation or interest in a public body or private parties retaining a long-standing practice or keeping a promise.

32. In Stefanetti & Others V. Italy (April 2014) Judgment Strasbourg (Applications nos. 21838/10, 21894/10, 21852/10, 21855/10, 21860/10, 21863/10, 21869/10, and 21870/10); the European Court of Human Rights held that:

“The Applicants considered that they had a possession provided for by domestic law that fell within the ambit of Article 1 of Protocol No. 1. Their right to a pension had been based on the salaries they had earned; however, because of Law no. 296/06 which totally reshaped the scheme to their detriment that right had been denied. For a claim to be capable of being considered an “asset” falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it. Where that has been done, the concept of “legitimate expectation” can come into play.”

See also judgment in Čakarević v. Croatia (Application no. 48921/13) Strasbourg 26 April 2018

33.  In the instant case, the Applicants have sufficient basis in national law to maintain their claim as Sections 173, (1), (2), (3) & Section 210 of 1999 Constitution of the Respondent provides for the right of a person in public service of the Federation to receive pension or gratuity subject to the provision of the law.

The Applicants further relied on the authority of the Supreme Court of Nigeria to argue that the 5 years pension buyout paid by the Defendant is unconstitutional, and offends international laws of human rights.

34. In Andrejeva v. Lativa, Application no. 55707/00) JUDGMENT STRASBOURG, 18th February 2009, the ECHR held that:

“Where a contracting state has in force a legislation providing for the payment of rights as welfare benefits, that legislation must be regarded as generating a pecuniary interest falling within the protocol 1 of Article 1 of the European Convention on Human Rights.”

Also in Edoh Kokou v. ECOWAS Commission, ECW/CCJ/JUD/03/10, the Plaintiff’s employment with the Defendant was unlawfully and unexpectedly terminated without prior notice. The Court held that:

“The plaintiff is entitled to all the benefits he would have received for the rest of the course of his contract if his appointment had not been terminated.”

In line with the above jurisprudence, the Court finds that the Applicants are entitled to all the benefits and emoluments accruable to them were their services not discontinued by the Respondent in the light of their legitimate expectation. The Respondent must ensure that no Applicant is denied life pension entitlement due to reasons of not attaining pension age.

It is trite law that a legitimate expectation is capable of sustaining a claim on the right to property as same is subject to protection. In the instant case, the Applicants never envisaged that their services will be cut short by the Respondent. Upon assumption of office they had a legitimate expectation that barring any death or infraction by their actions, they will earn a life pension in accordance with the law. An abrupt termination of their services denying pension benefits which is a legitimate expectation was not within their legitimate contemplation. The Court finds that the Applicants are entitled to their legitimate expectation of life pension payment.

35. While the court had earlier come to a determination that the burden of proof of the entitlements rests with the Respondent who did not file a defence, records before the Court however show that the Respondent in 2012, paid a 5 year pension buyout as agreed by the Applicants’ union on their behalf. The Court notes that the agreed 5 year buy out was intended to satisfy the legitimate expectation of the Applicants not to be denied their pension benefit. The consequence is that irrespective of years of service, every Applicant received a computed sum of pension.

However, the Applicants claim is that even though the negotiation for a 20 year buy out failed, the payment of a 5 year buy out is a flagrant violation of a continuous right of the Applicants as provided in section 173(1), (2), (3), & 210 of the 1999 Constitution of Nigeria. Furthermore, the later proposal by PTAD in 2017 to pay a monthly pension was rejected by the Applicants as being in violation of S 173, 1, 2, 3, & 210 of the 1999 Constitution of Nigeria. Indeed in the letter dated 17th May 2017 in response to the request by PTAD for submission of document to enable the monthly payment, the Applicant stated categorically “Therefore the monthly payment is hereby rejected”.

It is necessary at this point to examine the provision of the above referred 1999 constitution of the Respondent to enable a proper understanding of its content and relevance to the case of the Applicants.

Section 173 (1) “Subject to the provisions of this Constitution, the right of a person in public service of the Federation to receive pension or gratuity shall be regulated by law.”

Section 173 (2) “Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct”.

Section 210 is a repeat of the above provisions.

The purport of S173 (1) & (2) and S 210 of the 1999 Constitution of Nigeria is a guarantee of the right of a person in public service of the Respondent to receive pension or gratuity subject however to law, additionally any denial or alteration with adverse effect must be to the extent permissible by law. In other words the right to pension though guaranteed is not absolute, it can be altered or denied to the extent that it is in accordance with law. The question to ask is can the payment of a 5 year pension buyout which was agreed upon by the Applicant’ union on their behalf to be deemed “be withheld or altered to their disadvantage” to render it inconsistent with S173 (2) of the Nigerian Constitution.

The Court notes that the authority of the said union to act on their behalf was not controverted at any time. The Court therefore finds that the 5 year buy out having been agreed upon, the Applicant is precluded from reactivating the 20 years failed negotiation. Terms of any agreement in the absence of any vitiating factors is not voidable.

In Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, Lord Denning J stated that:

“Parties should be prevented from going back on a promise to waive certain rights. The time had come for this to be recognized as giving rise to an estoppel.”

A further claim of the Applicant is that the monthly pension payment is inconsistent with the S173 of the Nigerian Constitution. Indeed the constitution guarantees pension for all public servants but makes no provision as to the mode of payment. The Applicants have not established the overriding reason neither does the court understand the basis of rejection of a monthly pension payment. Were NITEL/MITEL not privatised, same would have been the mode of payment of a life pension when accruable to the Applicants.

The court therefore holds that neither the 5 year buyout plan nor the proposed monthly payment is in violation of S173 (2) & (3) of the Nigerian Constitution.

38.  Allegation of non-payment of Federal Mortgage contribution valued at 2 Billion Naira:

The Applicants under this head are seeking a compensation/refund of the mortgage contribution by the Applicants valued at 2 Billion Naira. The Applicants attached a Certified True Copy (CTC) passbook of the Mortgage contribution of Attah Idowu David dated 10th March 2013 with particulars of contributions on pages 440-458 of the Originating application wit; opening balance of 261.25 Naira in November 1993 and closing balance of 264,964.42 Naira in December 2010. It is noteworthy that while this document is indicative that a mortgage contribution scheme existed, it is not sufficient to prove evidence of mortgage contribution by all the 17,101 Applicants. Furthermore being a voluntary contributory scheme, all the Applicants may not necessarily subscribe to the scheme neither would they have contributed the same amount.

39. Considering that the burden of proof is ordinarily on the person who asserts, and in the light of the fact that mortgage scheme is voluntary. To succeed in this claim, the Applicants are required to exhibit the specific staff who subscribed to the scheme and the total amount that has accrued to each contributor. Mortgage scheme is like a specialised Banking account in which every contributor like Attah Idowu David has a record in form of a passbook detailing all their transactions with relevant dates and amount contributed. It is the understanding of the Court that all Applicants who are contributors to the scheme should have the custody of their records as in the case of ATTAH IDOWU DAVID whose records were exhibited in the pleas of the Applicant. The court is not entitled to assume that all the Applicants are contributors to the mortgage scheme. In the absence of a list of specific contributors and the total amount contributed, the Court is unable to award the claim for 2 Billion Naira compensation as the Applicants have not proved their case. The claim of the Applicant for the refund of 2 billion naira therefore fails and the Court so holds.

40. Allegation of non-payment of life insurance entitlement:

The Applicants claim that they are entitled to workman compensation under the life insurance scheme worth 17,639 Billion Naira at the premium of 1 million Naira per staff details of which was attached at page 436 and 500 of the originating application. To succeed under this claim, the Applicant must establish their entitlement to the claim either by exhibiting such provision in the condition of service or a life insurance contract, or any other document to substantiate the provision of a life insurance scheme for the benefit of all the Applicants. This documents will of necessity indicate the value of the insurance. Since any of these documents that are required to prove their case will in the ordinary course of event be in the custody of the Applicant, having failed to exhibit same, The Court finds that the Applicants have not proved their case, and holds that same being unsubstantiated therefore fails.

41. Allegation of non-payment of contributory pension deducted from salary at source:

The Applicants claim that the disengaged staffs made contributory pension and are all entitled to be paid back in block. In adducing evidence to support the above claim, Applicants presented on pages 460 to 470 of the originating application a detailed pay slip of 11 Applicants showing deductions from salary under various heads which were abbreviated without any explanation.

To prove this claim, the Applicant must establish that 1) they are pensionable staffs who have made such contributions and 2) their entitlement. The fact that the Applicants are former employees of NITEL/MITEL is uncontroverted. The Applicants annexed as evidence a letter to the Executive Secretary of Pension Transitional Arrangement Directorate (PTAD) on the 8th of May, 2017 wherein they were directed to submit their documents for monthly pension payment. The Respondent, having admitted and recognized the Applicants’ rights to pension, same need no further proof. However, this claim is extraneous as the payment of pension scheme operative in Nigeria is necessarily dependent on contributions by employees and employers from which life pension benefit was paid. Having made a full analysis of life pension above, this claim being superfluous and irrelevant, fails and the court so holds.

42. Allegation of non-refund of proceeds of the sale of 250 Buses alleged Property of the Applicant sold by the Respondents and valued at 1.2 Billion Naira:

The Applicants urge this Court to declare that they are entitled to a refund for the buses sold by the Respondent which they alleged belong to the workers/staff of NITEL/MITEL same having been purchased from their contributions. The court has no record to substantiate the ownership of the said 250 Buses for instance the names in which the buses were purchased, their models, the license particulars. These documents should be in the custody of the Applicants as alleged owners. The only document before this Court is the letter on page 499 of the originating application addressed to the liquidation panel seeking compensation for buses valued at 1.25 billion Naira which does not in any way prove ownership.

It is trite law that he who alleges must prove See (FEMI FALANA & ANOR V. REP OF BENIN & 2 ORS (2012) ECW/CCJ/JUD/02/12 pg. 34 and DAOUDA GARBA V. REPUBLIC OF BENIN (2010) CCJELR Page 12.Para 34 & 35.) Supra.

Having not been able to prove the ownership of the said 250 buses, The Court declare this claim unsubstantiated and therefore fails and the Court so holds.

43.  Allegation of Claim of ownership of landed property by members of the Applicants in NITEL/MITEL offices Nationwide:

The Applicants claim that many of their members own landed properties within the premises of NITEL/MTEL nationwide which were sold and for which no compensation was paid. It is instructive that the properties allegedly own by members was valued at 40 billion naira in page 437 of the originating application, while same was valued at 10 billion Naira in the letter to the liquidator on page 500. Apart from the letter of request for payment of the landed properties made to the liquidators attached to the initiating application on page 437, there is no proof of ownership in the form of the certificate of occupancy, details of the size and location of the land and the specific members who are owners considering that not all the Applicants are alleged to own the landed property. As earlier noted, ownership confers right to property and in the light of the fact that the Applicants have failed to provide documentary evidence to substantiate their claim for ownership of the landed properties, the allegation of violation of their right to property under this head fails and the Court so holds.

44.  Allegation of failure of the Respondent to pay compensation for the staff canteens built in 36 States of the Federation by Applicants:

The Applicants averred that during their years of service, they formed a cooperative group in which monies were contributed to build canteens across the 36 States of the federation in which the NITEL/MTEL offices were located. Same having been sold during the privatisation process, they urged the court to order the Respondent to refund the sum of 2 Billion Naira as the estimated cost of building the said staff canteens.

Apart from the letter on page 500 of the originating application dated 17th August, 2016 and addressed to the liquidators requesting for the payment of 5 Billion Naira estimated cost of building the canteens, there is no evidence of title deed either conferring ownership of the said canteens or evidence of building expenditure by the Applicants or records of contributions indicating their investment in the said canteens. Since the Applicants alleged to have built the canteens they should have documents in their possession to support their claim. As stated above, he who alleges bears burden of proof where facts of allegation are within their knowledge and custody.

The Applicants have failed to satisfy the Court on this claim as ownership of the 36 canteens has not been established. The Applicants’ claim of violation of their right to property under this head fails and the Court so holds.

The Applicants also made a further cocktail of claims including non-payment of October salary/ house rent allowance to the said disengaged staff, Three months’ salary in lieu of notice and payment of workman life pension of one million Naira each. None of these claims were addressed at all in their pleas. Having being unsubstantiated, the said claims are dismissed.

Following from all the analysis of this instant case, the Court adjudicating in a public hearing, in the first and last resort, after hearing parties on matter of human rights violation, decides as follows:

 


 

DECISIONS:


 

DECLARES

1.  That the Court has jurisdiction to entertain the present suit being premised on allegation of violation of human rights.

2.  That the 5 years pension buyout the Respondent paid to the Applicants is not contrary to section 173, 1, 2, 3, & 210 of the 1999 Constitution of Nigeria.

3.  That the request by the Pension Transmission Arrangement Directorate (PTAD) agent of the Respondent, asking the Applicants to submit their documents for a monthly payment of pension is not contrary to the provisions of section 173, 1, 2, 3, & 210 of the 1999 Constitution of Nigeria and not a violation of their right to property.

4.  That the Applicants have not substantiated their claims to 200 Billion Naira as their pensionable retirement benefit payable in bulk.

5.  That Applicants have not substantiated their claim for a refund of Mortgage contribution deducted at source.

6.  That the Applicants have not substantiated their claim as regards refund of monies on the 250 Buses, 36 canteens, landed properties and entitlement to life insurance known as Workman compensation.

7.  That all other claims being unsubstantiated are hereby dismissed.

8.  That this application is hereby dismissed

9.  Parties should bear their own cost.

Thus pronounced and signed on this 15th day of May, 2019 in the Community Court of Justice, ECOWAS Abuja, Nigeria.

AND THE FOLLOWING HAVE APPENDED THEIR SIGNATURES:

 

Hon. Justice Edward Amoako Asante  - Presiding

Hon. Justice Dupe ATOKI                    - Member/Judge Rapporteur

Hon. Justice Keikura BANGURA           - Member

 

Assisted by

Athanase ATANNON                           - Deputy Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 11 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Moreira-Costa JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE OF

ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN IN ABUJA NIGERIA

ON THE 24TH OF JANUARY, 2019

 

SUIT NO: ECW/CCJ/APP/11/18

JUDGMENT NO. ECW/CCJ/JUD/02/19

 

BETWEEN:

TAAKOR TROPICAL HARDWOOD COMPANY LTD.             PLAINTIFF

AND

THE REPUBLIC OF SIERRA LEONE                                      DEFENDANT

 

COMPOSITION OF THE COURT:

HON. JUSTICE EDWARD AMOAKO ASANTE                       - PRESIDING

HON. JUSTICE GBERI-BE QUATTARA                                - MEMBER

HON. JUSTICE JANUARIA T. S. MOREIRA COSTA               - MEMBER

 

ASSISTED BY:

TONY ANENE-MAIDOH - CHIEF REGISTRAR


JUDGMENT


 

PARTIES

The Plaintiff is a limited liability company with offices in the United States of America and Sierra Leone.

The Defendant is the Government of the Republic of Sierra Leone which is a member State of the Economic Community of West African States, ECOWAS.

 

SUMMARY OF FACTS

By a Concession Agreement made on July 25, 2007, the Defendant and the Plaintiff decided to co-operate for the sustainable exploitation of the Tama-Tonkolli Forest Reserve (65,000 ha) in East-Central Sierra Leone. Pursuant to the Agreement, the Plaintiff stated that it employed over six hundred (600) Sierra Leoneans and planted 4 million teak trees in the first 6 months of operations and had plans to plant an additional 4 million trees each year for the 20 years covered by the Agreement.

The Plaintiff stated further that it invested over $19m in equipment purchases, shipping costs, spare parts and supplies to support operations, logistics, salaries, etc. Additionally the Plaintiff constructed an all-purpose, all season main Road from Masingbi past Bandakoro as well as town Roads, Feeder Roads and secondary Roads totaling 57 kilometers. The Road network consisted of sixty four (64) water crossings through twelve (12) villages. The estimated cost according to the Plaintiff, was Nine Hundred thousand to a million and one hundred thousand US Dollars ($900,000-$1,100,000). The Plaintiff also said it rehabilitated the main highway between Masingbi and Magbaurka.

The Plaintiff went on to say that it received the Defendant’s approval to rehabilitate a portion of Jui Port that was not in use and reclaimed over ten thousand square metres (10,000m2 ) of land adjacent to the Port that was eroding. According to the Plaintiff, it also constructed an additional entrance into the Port, repaired and secured the two large hangers and repaired and maintained the Road connecting Jui Port with the main highway to Kissy. Furthermore, the Plaintiff said it helped the Jui Community with the Construction of a Mosque, the installation of a new well, and went as far as supplying a fishing boat with fishing nets and motor.

The Plaintiff’s case is that it received an order from its first customer, Theodore Nagel (Germany), around the middle of January, 2008. The order was for four thousand cubic metre (4,000m3) of mixed species with a value of One Million, Two Hundred Thousand Dollars ($1,200,000 USD). It said Theodore Nagel also indicated that they would be interested in purchasing ten thousand cubic metre (10,000m3 ) of mixed species each month going forward.

According to the plaintiff’s pleadings, in March 2008, the Defendant breached the Agreement when it decided to illegally stop the Plaintiff from exercising their rights as outlined in the Agreement. The breach caused severe damage to the Plaintiff and robbed Defendant’s citizens of much needed jobs. The plaintiff stated further that even though the Defendant illegally banned logging operations in March 2008, there were assurances that the ban would be lifted. According to the plaintiff, on account of the illegal breach of the Agreement, it was forced to stop work. Plaintiff said it had depleted its working capital after nearly a year of Defendant’s delays and even took a loan of an additional facility of Two Million Five Hundred Thousand Dollars ($2,500,000) dollars to sustain it.

According to the plaintiff, at the time the Defendant illegally halted its operations it had hauled over One Hundred and Twenty Seven thousand cubic metre (127,000m3) of trees from the forest reserve from January 5th through the end of March of 2008. The logs were located in 2 log yards in Bandadoro, 2 log yards in Sumbaria, the main Company log yard in Masingbi, and Plaintiff’s log yard inside the Port. The Plaintiff had again loaded over 600 x 40’ containers for export. All the logs inside the yard were either stolen or burnt as a result of Defendant’s abrupt illegal censorship of the Plaintiff’s operations. The Plaintiff had sold three thousand, one hundred ninety four point fifty seven cubic metre (3,194.57m3 ) of mixed species logs to a Chinese buyer prior to the ban. Although the Defendant eventually allowed the export, the Chinese buyers’ Letters of Credit (LC) expired due to the repeated delays and they refused to pay for the logs after they arrived in China. Consequently, the Plaintiff lost over Four Million, Five Hundred Thousand US Dollars ($4,500,000) due to the interference by the Defendant’s agencies.

It is the case of the Plaintiff that without the frustration of the agreement, the Plaintiff would have planted forty million (40,000,000) teak trees in ten (10) years. The teak plantations would have comprised an area of eighty thousand plus (80,000+) hectares with a projected business plan of employing thousands of Sierra Leoneans in industries like nurseries, tree planting, logging, sawmilling, and plywood production, in an area of the country that has a small population, with virtually no industry and subsequent high unemployment rate.

The Plaintiff said its officials attended numerous meetings with the President, Vice President, Finance Minister, Labour Minister, Minister of Agriculture, Director of Forests, Forestry Division representative to discuss the breach of the Agreement. Although, the Defendant did not rescind the ban, the Plaintiff was forced by the Defendant to pay an additional three (3) months of wages to its workers. According to the Plaintiff, it was operating at a loss, and so it decided to stop all operations after the President of Sierra Leone had reneged on his promise on three separate occasions to lift the ban. The Plaintiff was forced at great expense to relocate all its equipment to Kenema for safekeeping.

Plaintiff further states that in 2011, its representatives met with top officials of the Defendant to discuss the issue of compensation, but the Defendant refused to commit itself. From the records before this Court, in 2012, the Plaintiff sued the Defendant at the High Court of Sierra Leone (Commercial Division) for the breach of the contract. The Defendant decided not to take part in the proceedings. The court gave a default judgment in favour of the Plaintiff. Based on the default judgment obtained from the court, the Plaintiff continued up to 2017 to persuade the Defendant to reach a settlement, but the Defendant still refused to discuss compensation on the ground that the Agreement provided for arbitration and not civil litigation.

According to the plaintiff, a meeting was held between its Counsel Mr. Ibrahim Yillah on January 5, 2018, the Defendant’s Attorney-General, Mr. Joseph Fitzgerald Kamara and the defendant’s Attorney General informed the plaintiff that it was not prepared to refer the dispute to arbitration in line with the terms of the Venture Agreement.

The plaintiff specifically itemizes its accrued losses as follows:

I.           The value of the teak plantation is One Billion US Dollars ($1,000,000,000.00 USD)

II.          The Tama-Tonkololli Forest Reserve is One Billion, Five Hundred and Thirty Two Million, Six Hundred and Seventy Five Thousand US Dollars ($1,532,675,000 USD )

III.         The total loss of Revenue is One Billion, Three Hundred and Eighty Million, Seven Hundred Thousand US Dollars ($1,380,700,000.00 USD)

 

RELIEFS SOUGHT BY THE APPLICANT

The Applicant seeks the following reliefs from the Honourable Court:

(A)      A DECLARATION that the deliberate breach of the Concession Agreement voluntarily made on the 25th Day of July 2007 by the Defendant without any justifiable cause is illegal, unlawful, null and void and of no effect whatsoever.

(B)       A DECLARATION that the willful and persistent refusal by the Defendant to perform its contractual obligation in accordance with the express terms and conditions stipulated in the Concession Agreement made on the 25th Day of July 2007 is illegal, null and void as same is a violation of the provisions of ARTICLE 15 of the African Charter on Human and Peoples Rights, ARTICLE 23 of the Universal Declaration of Human Rights.

(C)       AN ORDER of this Honourable Court by way of a mandatory injunction compelling the Defendant, its agents, servants, privies and by whatsoever name called to perform its contractual obligations as contained in the Concession Agreement made on the 25th Day of July 2007.

(D)      AN ORDER of this Honourable Court compelling the Defendant, its agents, servants, privies and by whatsoever name called to pay over to the Plaintiff within a duration of 100 days after the delivery of Judgment in this suit the sum of $1, 357, 200, 000.00 (One Billion, Three Hundred and Fifty-Seven Million, Two Hundred Thousand Dollars) being an estimated consequential damages arising from loss of expenses and expected income for the contract period of 20 years.

(E)       AN ORDER of this Honourable Court directing the Defendant, its agents, servants, privies and by whatsoever name called to pay over to the Plaintiff a Percentage of 25% Post Judgment interest on the Judgment sum delivered by this Honourable Court within a period of 100 days from the date Judgment is delivered in this suit.

(F)       AN ORDER of Perpetual injunction restraining the Defendant, its agents, servants and privies and by whatsoever name called from leasing, alienating, transferring or parting with the interest and contractual rights of the Plaintiff in the Concession Agreement made on the 25th Day of July 2007 to any third party.

(G)      AN ORDER of this Honourable Court compelling the Defendant, its agents, servants, privies and by whatsoever name called to immediately pay over to the Plaintiff as aggravated and punitive damages the sum of $500, 000, 000.00 (Five Hundred Million United States Dollars) within a period of 100 days after Judgment is delivered in this suit.

(H)      AN ORDER of this Honourable Court directing the Defendant, its agents, servants, privies and by whatsoever name called to immediately pay over to the Plaintiff, the sum of $400, 000, 000.00 (Four Hundred Million United States Dollars) as general damages for the psychological and mental trauma suffered by the Plaintiff occasioned by the breach of contract at the instance of the Defendant within period of 100 days after Judgment is delivered.

The Defendant filed a preliminary objection on the 15th October, 2018 praying this Court to dismiss/strike out this suit for want of jurisdiction.

Specifically, Defendant’s motion is grounded as follows:

1.  That this Honourable court lacks jurisdiction to entertain this application as against the Defendant/Applicant.

2.  That this Honourable court lacks jurisdiction to entertain this application as against the Defendant/Applicant for unlawful termination of the Concession Agreement entered into between the Plaintiff and the Defendant

3.  That further and/or in the alternative the action herein be set aside on the following grounds:

i.   The agreement exhibited as annexure “A” the subject matter of the Plaintiff/Respondent application provides for any dispute arising from the agreement to be settled by means of arbitration and not by filing this application in the Ecowas Court.

ii.  That the said action is an abuse of the process of the court in that annexure “H” is a Judgement in default obtained by the Plaintiff/ Respondent in the High Court of Sierra Leone in suit No: C.C 100/12, 2012 NO.4. which ought to have been executed by the Plaintiff/Respondent in Sierra Leone and not by filing the application herein to the Ecowas Court. This again we submit is tantamount to an appeal to the Ecowas Court by the Plaintiff/Respondent from decisions of the Sierra Leone High Court. The Ecowas Court does not serve as an appellate chamber from decisions of member states. To entertain this application will be an attack on the judicial comity existing between the Ecowas Court and courts in the member states.

On 21st November 2018, the Plaintiff filed a response against the Preliminary Objection of the Defendant. In substance the Plaintiff’s response is contained in paragraphs 2, 3 and 4 of its 5 paragraph Counter affidavit (Document 4) as follows:

2.        Mr. Mark Beasley, the Managing Director of the Claimant informed me on phone on 19th November, 2018 and I verily believe as follows:

a.         In 2013 and 2018 the Respondent suspended timber export in Sierra Leone, Attached herewith and marked Exhibits “J” AND “K” are photocopies of documents which reported the suspension.

3.        The judgment is inconclusive in that the Commercial Court of Sierra Leone did not award any specific damages for breach of the contract.

4.        The breach of the Agreement has not ceased as the Claimant has not been allowed to remove all plants, equipment and movable assets, the properties of the Claimant.

The Application for preliminary objection was heard in open Court on the 23rd November, 2018 where the parties represented by their respective counsel were given opportunity to argue their cases. Both counsel virtually relied on their written submissions without raising any new points of law. Counsel urged the Court to determine the Application on the strength of those submissions.

DEFENDANT’S ARGUMENT IN SUPPORT OF THE PRELIMINARY OBJECTION

The Defendant prays the Court to strike out the Plaintiff’s suit on grounds, inter alia, that the Court lacks jurisdiction to entertain the suit. It argued its case on three main prongs.

Firstly, the Defendant contends that the Concession Agreement (Exhibited as Annexure “A”) which forms the basis of the Plaintiff’s suit provides for mode of settling any disputes arising from the Agreement. According to the Defendant, Annexure “A”, expressly provides for an Arbitration under Clause 16.1 envisaging that all disputes arising out of or in connection with the Agreement shall be settled by an arbitration. The Defendant’s case is that the Plaintiff’s suit was brought to this Honourable Court in breach of the Arbitration Clause 16.1 of Annexure “A”.

In deed the Defendant asserts that the Plaintiff, before instituting the present action had sued and obtained judgment against the Defendant at the High Court (Commercial Division) of Sierra Leone under the municipal laws of the parties. In both suits; i.e. before the High Court of Sierra Leone and in the present case, the argument of the Defendant is that the Plaintiff is in breach of the Arbitration Clause in Annexure “A” since the parties have voluntarily and expressly agreed to resolve their dispute by arbitration under the provisions of the applicable laws of Sierra Leone. The relevant law being the Arbitration Act (Caps 25) of the laws of Sierra Leone. The Defendant, accordingly submitted forcefully that the parties have a duty to honour the arbitration clause in Annexure “A”. The Plaintiff’s failure to honour such an important duty as a pre-condition under their Agreement makes its present action inadmissible.

Secondly, the Defendant contends that the subject matter of the Plaintiff’s suit pertains to an alleged unlawful termination of Annexure “A”. The Defendant argues that the alleged illegal ban upon which the Plaintiff has grounded its action was an event which occurred in March 2008. In the circumstance, the Defendant submits that commencing the present action on 14 February 2018 renders the action statute barred under the relevant texts of this Honourable Court. The Defendant is hugely relying on Article 9(3) of the 1991 Protocol (A/P1/7/91) on the Court as amended by Article 3 of the Supplementary Protocol of 2005 (A/SP/.1/01/05). To this end, the Defendant submitted that the Honourable Court lacks jurisdiction to entertain the Plaintiff’s suit because the suit is statute barred.

The third ground of the Defendant’s arguments relates to the assertion of an abuse of the process of this Hnourable Court by the Plaintiff. According to the Defendant, the Plaintiff, in its initiating pleadings under paragraph 20 thereof stated that in 2012, it obtained a judgment from the High Court of Sierra Leone against the Defendant in Suit No. C.C 100/12, 2012 and exhibited same as Annexure “H”. The Defendant contends that the Plaintiff having already obtained judgment in its favour against the Defendant, ought to have sought the execution of the judgment rather than proceeding to this court. The Defendant therefore characterizes the present suit as an abuse of the Court processes seeking to invite this court to serve as an appellate court over decisions of Sierra Leonean Courts. The Defendant says that amounts to an attack on the judicial comity existing between this Court and courts of member states.

PLAINTIFF’S ARGUMENT IN RESPONSE

The Plaintiff, before responding to the three prongs argument of the Defendant, raised an issue to challenge the propriety of the Defendant’s document titled Affidavit in Support of the Preliminary Objection deposed to by one Osman Ibrahim Kanu, a Principal State Counsel at the Law Officers Department in the office of the Attorney General of the Defendant and sworn to before a Commissioner for Oaths in Freetown on the 24th September, 2018. The Plaintiff’s argument in this regard is that the said Affidavit in Support of the application for preliminary objection is defective and alien to the Rules of this Court since it was not deposed and sworn to before this Honourable Court but under the authority of a different court in Sierra Leone.

In response to the Defendant’s argument that the present action has been instituted in breach of Annexure “A” for failing to comply with a condition precedent which provided for arbitration, the Plaintiff stated that via two letters dated 20th December, 2011 and 19th January, 2018 which were duly served on the Attorney General of the Defendant, the Plaintiff requested that an Arbitrator be appointed for the purpose of having the dispute resolved but the Defendant on both occasions failed to react to the letters. The Plaintiff is of the view that the deliberate failure and or refusal to appoint an Arbitrator by the Defendant amounted to waiver of its right to resort to any arbitral proceeding as a pre- condition for the institution of the present action. The Defendant cannot therefore approbate and reprobate at the same time.

Also in respect of the Defendant’s assertion that the Plaintiff has already sued and obtained judgment against the Defendant at the Commercial Court in Sierra Leone; rendering the present suit as an appeal, the Plaintiff responded that the judgment was inconclusive since no damages was awarded in its favour. So there is no judgment to enforce. In view of the above responses, the Plaintiff maintains that the Honourable Court is clothed with jurisdiction to entertain this suit under Article 10 of the 1991 Protocol of the Court as amended by the Supplementary Protocol of 2005. The Plaintiff states that the failure of the Defendant to provide an effective remedy for the violation of the rights of the Plaintiff has necessitated the Plaintiff’s resort to this Court.

On the issue of the present action being Statute barred, the Plaintiff argues that the breach that arose from the Concession Agreement (Annexure “A”) which has given rise to the cause of action in this suit is continuous in nature. The Plaintiff states that the injury suffered and complained of by the Plaintiff is continuous and to that extent, this Court has unfettered jurisdiction to entertain and determine the suit. The Plaintiff further argues that the Defendant has repeatedly suspended the export of timber from Sierra Leone contrary to the terms of Annexure “A”. The suspension was announced in 2008, 2013 and 2018 thereby putting on hold their contract with the Defendant. The Plaintiff again says that it has not been allowed to dispose of all plant, equipment and movable assets in line with article 18.0 of the Agreement. Since the movable assets of the Plaintiff have not been disposed, the breach is also continuous. The Plaintiff therefore submits that the present action is not statute barred.

ISSUES FOR DETERMINATION

At the close of hearing two main issues came up for determination by this Honourable Court as follows:

1.  Whether or not this Court lacks jurisdiction to entertain this suit?

2.  Whether or not the Plaintiff’s action is Statute Barred?

LEGAL ANALYSIS

The Court deems it expedient, before it seeks to determine any issues presented before it, not only to establish whether it has the competence to deal with the issues so presented but also to ascertain the capacity of the parties before it. In respect of its competence, apart from the texts of the Court other factors may be considered as stated in the case of BAKARY SARRE & 28 ORS. & THE REPUBLIC OF MALI, (2011) CCJELR 67 that:

The Competence of the Court to adjudicate in a given case depends not only on its texts but also on the substance of the initiating application. The Court accords every attention to claims made by applicants, the pleas-in-law invoked, and in an instance where human rights violation is alleged, the Court equally carefully considers how the parties present such allegations. The Court therefore looks to find out whether the human rights violation as observed constitutes the main subject-matter of the application and whether the pleas-in-law and evidence produced essentially go to establish such violation”.

However, access to the Court being an Interstate Court is strictly regulated by its Constitutive Texts and nothing else. The Constitutive Texts prescribe various categories of persons (both natural and juristic) clothed with capacity to access the jurisdiction of the Court in respect of certain causes of action. It is settled law that the test for the validity of the institution of an action, as far as the capacity of the party is concerned, is whether the party has been granted access to the Court by the latter’s constitutive texts.

As presently constituted, access to this Court is provided for under Article 4 of Supplementary Protocol A/SP.1/01/05 amending the Protocol of 1991 (A/P1/7/91) on the Court by the insertion of a new Article 10 which provides as follows:

  •   Article 10: Access to the Court

Under Article 10, access to the Court by corporate bodies is provided for:

c)         Individuals and corporate bodies in proceedings for the determination of an act or inaction of the Community official which violate the rights of the individuals or corporate bodies;

d)        Individuals on application for relief for violation of their human rights; the submission of application for which shall:

i)         not be anonymous; nor

ii)        be made whilst the same matter has been instituted before another International Court for adjudication;

The Plaintiff in the instant case, Taakor Tropical Hardwoods Company Limited is indubitably a limited liability company (Corporate Entity) with offices in the United States of America and Sierra Leone. The Plaintiff being a corporate entity is alleging violation of its human rights by the Defendant.

This Court has repeatedly held that only an individual can sue for Human Rights violations or on his behalf by an NGO and that within the context of Article 10(d) of the Protocol as amended, “individuals” refers to only human beings and no more. In the reasoning of the Court, because Article 10 (c) mentioned individuals and corporate bodies, the legislation sought to distinguish between human beings and other legal entities. By expressly giving access to only individuals under article 10(d), the Supplementary Protocol sought to give that right exclusively to individual human beings who are victims of human right abuse to the exclusion of all others. A corporate body cannot therefore rely on the provisions of Article 10 (d) to access the jurisdiction of this Court. See OCEAN KING NIGERIA LIMITED V. REPUBLIC OF SENEGAL, SUIT NO. ECW/CCJ/APP/05/08, paragraph 48 of the judgment of 8th July 2011.

This Court has further explained itself in the case of ALHAJI MUHAMMED IBRAHIM HASSAN V. GOV. OF GOMBE STATE ECW/CCJ/APP/03/10, para 46 of Judgment

NO. ECW/CCJ/RUL/07/12 of 15th March 2012 that an essential criterion for human rights complaint by a Plaintiff is that of being a victim. It is therefore necessary that the action is brought directly by the victim or on behalf of the victim by a corporate body (NGO). The Court held as follows:

“Paragraph (d) of new Article 10 of the Protocol on the Community Court of Justice as amended by Protocol A/SP.1/01/05 of 19 January 2005 provides:

“Access to the Court is open to … individuals on application for relief for violation of their human rights”.

By virtue of this Article, for every action relating to human rights protection, cases before the Court must be filed by an individual or a corporate body who fulfills the requirement of being a victim.

In the case of STARCREST INVESTMENT LTD V. PRESIDENT ECOWAS COMMISSION (2011) CCJELR 165, ECW/CCJ/APP/01/08 Judgment of 8th July 2011, the Court held as follows;

“This Court thus held in the case of the Registered Trustees of the Socio- Economic Rights and Accountability Project (SERAP) v. President of the Federal Republic of Nigeria and 8 Ors. Suit No. ECW/CCJ/APP/08/09 delivered on 10th December, 2010 unreported that no action could lie against a corporate body in human rights cases before this Court. By parity of reasoning, the converse of the decision just cited is equally true and that is, no corporate body can bring a human rights case before this Court as a Plaintiff as an alleged victim of human rights abuse. Thus the provisions of the ACHPR do not avail the Plaintiff in this Court in so far as they complain about human rights abuse against them as a Company” (Paragraph 17 of the Judgment of 8th July, 2011) .

The Plaintiff’s reliefs have been carefully evaluated to see whether any of its complaints has to do with right to fair hearing in order to ground the action under the exception created by this Court within its inherent jurisdiction. In the OCEAN KING NIGERIA LIMITED V. REPUBLIC OF SENEGAL (cited supra) the Court held that it will exercise its inherent jurisdiction to entertain an application by an aggrieved party that complains of a denial of the right to fair hearing which is a fundamental right open to any party who is affected by a tribunal’s decision since that right is not dependent on human rights, and for that reason a party who has such a complaint of denial of fair hearing should not be thrown out of a Court without first being heard. Unfortunately, none of the reliefs being sought by the Plaintiff relates to the issue of fair hearing.

The Court has equally evaluated two decisions of this Court cited by the Plaintiff in support of its case; OBIOMA C.O OGUKWE v. REPUBLIC OF GHANA ECW/CCJ/APP/12/14 and ABIA AZALI AND ANOR. V. REPUBLIC OF BENIN ECW/CCJ/JUD/01/15. In these case, the ratio decidendi has to do with the negligence of the member states concerned in exercising due diligence over non state actors. In the present case, the acts complained of by the Plaintiff are directly against the Defendant as a contractual party. To this extent these cases are hereby distinguished.

This Court, minded by the plethora of decisions on the incompetency of a corporate body to institute an action for violation of humans rights as espoused above has come to the conclusion that, the Plaintiff in the instant case being a corporate entity, lacks the capacity to bring this suit and the Court is bereft of competence to entertain same; and as such, this case is rendered inadmissible.

It is the law that if an action fails on a plea of lack of capacity, the court does not proceed to determine the merits of the case irrespective of the evidence.

However, since the facts relied on by the Defendant is contained in the Affidavit in Support of the Preliminary Objection which is being challenged by the Plaintiff, the Court will briefly consider the argument of the Plaintiff in respect of the propriety or otherwise of the said Affidavit in Support of the Preliminary Objection deposed and sworn to by an attorney at the Law Department of the Defendant. The Plaintiff’s argument that the said affidavit is defective and alien to the Rules of this Court was not supported by any texts of this Court. The Black’s Law Dictionary (2nd Edition) defines affidavit as “A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. An affidavit is a written declaration under oath, made without notice to the adverse party “.

There is no contradiction that the affidavit in question was voluntarily made and sworn to before a Commissioner for Oaths in Freetown, Sierra Leone. There being no error on the face of the said affidavit and the Plaintiff’s inability to adduce any cogent evidence to establish impropriety in the production of the document, this Court finds no fault with the document and therefore rules that the Plaintiff’s argument in respect of the document is frivolous, unmeritorious and accordingly dismissed.

In conclusion, this Court totally agree with the conclusion but differ with the reasoning of the learned Counsel for the Defendant that this Court lacks jurisdiction to entertain the Plaintiff’s application. The Plaintiff does not have the capacity to maintain an action against the Defendant for the reliefs being sought, and therefore the suit is inadmissible for adjudication

Article 87(1) of the Rules of the Community Court of Justice, ECOWAS provides that “a party applying to the Court for a decision on a preliminary objection or other preliminary plea not going to the substance of the case shall make the application by a separate document”. Additionally, Article 88(1) of the same document states that: “Where it is clear that the Court has no jurisdiction to take cognizance of an action or where the action is manifestly inadmissible, the Court may, by reasoned order, after hearing the parties and without taking further steps in the proceedings, give a decision”.

Defendant duly complied with the above provisions of the Rules of the Court by its Application dated 24th September 2018 and filed at the Registry of this Court on 15th October 2018.

DECISION

This Court after examining the initiating Application and the notice of preliminary objection by the Defendant; and after hearing counsel of the parties herein, and for the reasons canvassed above, holds that the Plaintiff’s action is manifestly not maintainable against the Defendant for lack of capacity and same is inadmissible. The case is inadmissible and the parties are to bear their respective costs.

THIS DECISION IS MADE, ADJUDGED AND PRONOUNCED PUBLICLY BY THIS COURT, COMMUNITY COURT OF JUSTICE, ECOWAS; SITTING AT ABUJA, NIGERIA ON THE 24TH DAY OF JANUARY 2019.

 

HON. JUSTICE EDWARD AMOAKO ASANTE                       - PRESIDING

HON. JUSTICE GBERI-BE QUATTARA                                - MEMBER

HON. JUSTICE JANUARIA T. S. MOREIRA COSTA               - MEMBER

 

TONY ANENE-MAIDOH - CHIEF REGISTRAR

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 24 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Bangra JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE

OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN AT ABUJA, NIGERIA.

ON WEDNESDAY, THE 6TH DAY OF FEBRUARY, 2019

SUIT NO: ECW/CCJ/APP/24/17

JUDGMENT NO: ECW/CCJ/JUD/ 03/19

 

BETWEEN

DEXTER OIL LIMITED…............................... APPLICANT

AND

REPUBLIC OF LIBERIA................................ RESPONDENT

 

COMPOSITION OF THE COURT

Hon. Justice Edward Amoako ASANTE                       - Presiding

Hon. Justice Dupe ATOKI                                           - Member/Judge Rapporteur

Hon. Justice Keikura BANGURA                                  - Member

Assisted by

Tony ANENE-MAIDOH                                                - Chief Registrar

REPRESENTATION TO THE PARTIES

1. Celestus Okwu Ejezie                                                   - For the Applicant

1. J. Daku Mulbah                                                             - For the Respondent

2. Garfor Tate                                                                   - For the Respondent

3. Lafayette B. Gouldar                                                      - For the Respondent


JUDGMENT


This is the judgment of the Court and Parties were both heard in the open Court.

PARTIES

1. The Applicant is Dexter Oil Limited, a company duly incorporated under the Laws of the Republic of Liberia with its registered address as 1st Floor, Milton & Richards Bldg., 152 Carey Street, Monrovia, Liberia. The shareholders and Directors are Community citizens of Nigerian Nationality.

2.  Respondent is the Republic of Liberia, a member State of ECOWAS and a signatory to the African Charter on Human and Peoples’ Rights and other International Human Rights instruments.

Summary of Facts

3. The Applicant by an originating process lodged with the Registry on the 28th June, 2017 applied for the enforcement of its Human Rights to own property valued as Three Million United States Dollars (USD 3,000,000.00) allegedly violated by the Respondent. Applicant complains about the unjustifiable detention of its property by the Respondent on the allegation of “suspicious transaction” of lodgement of money in its bank accounts.

4. Applicant alleges refusal and or neglect of the Respondent to release the said sum of money despite repeated demands, thereby constituting a violation of its right to possession and enjoyment of property, guaranteed by Article 14 of the African Charter on Human and Peoples’ Rights, Article 4(g) of Revised Treaty of ECOWAS domesticated by the Respondent and the Constitution of the Republic of Liberia.

5. Respondent claims contrary to Applicant’s averment that, the Applicant after its registration did not carry out a single business activity in Liberia. Instead, Dexter Oil Limited came to Liberia with the sole purpose of establishing two shell companies, which they eventually used as vehicles to launder money from the Republic of Nigeria through bank accounts established at the First International Bank Liberia Limited.

6. Respondent alleges that the money the Applicant is laying claim to is a product of suspicious transactions contrary to the monetary policy of the government of Liberia and further claims that, Applicant was invited to provide information to the authorities to prove that the transaction was legitimate but, the applicant has not been able to furnish any proof till date.

7.  The Respondent further claims that another Company Amni Petroleum Limited has written to the Central Bank of Liberia to ask for the reparation of the same money on the grounds that it was erroneously transferred to the account of the Applicant. Respondent insists that it has not violated the right of the Applicant to own Property.

The Applicant’s case:

8. The Applicant avers that it engaged in oil and gas business in Liberia and in the course of its business activities, an inflow of Three Million Dollars (US$3,000,000.00) was deposited into its account with First International Bank Liberia Limited and the Respondent through its Central Bank confiscated the funds on the allegation that it was a “suspicious transaction”. The Applicant states that when it demanded for the release of the said funds, the Central Bank of Liberia informed it that an investigation was being carried out into the suspicious transaction and needed time to conclude same.

9. The Applicant maintains that despite several demands made for the release of the funds, the Respondent continued to delay the release. The Applicant then wrote to the Respondent vide a letter dated 5th April, 2016 and copied the Liberian Senate demanding for the release of its funds. That by a letter dated 5th December, 2016, PricewaterhouseCoopers (Ghana) Limited, a Resolution Agent appointed by the Respondent’s Central Bank wrote to the Applicant informing them that Central Bank had taken over First International Bank Liberia and requested the Applicant to lodge its claim with full supporting documents to PricewaterhouseCoopers (Ghana) Limited. The Applicant asserts that its Chief Executive Officer received a response from PricewaterhouseCoopers (Ghana) limited acknowledging that they have received and validated their claims with respect to the amount due to them.

10.  Further to this, Respondent avers that the Liberian Senate Committee Chairman on Concessions and Investment and the Chairman of Senate Committee on Foreign Affairs upon its petition to the Senate wrote several letters to the Executive Governor of the Respondent’s Central Bank imploring the release of its funds. That after waiting for years for the conclusion of the alleged investigation by the Central Bank of Liberia, its Solicitor vide a letter dated 20th March, 2017 wrote to the Respondent’s Central Bank requesting for the final position on the matter. In response, the Central Bank wrote a letter dated 3rd April, 2017 stating that the CBL had transferred the suspicious activity report of the Applicant to the Financial Intelligence Unit to handle the case.

11. The Applicant further maintained that till date, the Respondent’s Central Bank has failed to inform them of the conclusion of the said “suspicious activity” investigation or release its funds. That the continued withholding of its funds by the Respondent’s bank has affected their business activities as its Directors who provided the confiscated funds as their capital are now indebted to banks and individuals in Nigeria.

12. In conclusion, the Applicant avers that prior to this application, the interest rate charged by banks and other financial institutions in both Liberia and Nigeria are running for about 21% per annum and they are entitled to a refund of the sum of Three million Dollars (US$3,000,000.00) with accrued interest at the rate of 21% per annum by the Respondent.

Pleas in law as filed by the Applicant:

13. The Applicant formulated an issue for determination by the Honourable Court as ‘whether in the circumstances of this application, the Applicant is not entitled to a refund from the Respondent of the sum of Three Million Dollars (US$3,000,000.00) with accrued interest?”

14.  The Applicant argues that Article 4(g) of the Revised Treaty of ECOWAS recognizes the promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights (ACHPR). Article 14 of the African Charter on Human and Peoples’ Rights provides that:

“The right to property shall be guaranteed. It may only be encroached upon in the interest of the Community and in accordance with the provisions of appropriate laws”.

15. The Applicant insists that the above provision of the African Charter on Human and Peoples’ Rights guarantees right to its property and forbids any encroachment on same except in the public interest where provided by law. Applicant further argues that it has access to the Court to institute this action pursuant to Articles 10 (C) & (D) of the 2005 supplementary Protocol on the Community Court of Justice, ECOWAS.

16. Applicant further states that Articles 11, 20(a) and 21(b) of the Respondent’s 1986 Constitution also respectively guarantee the Applicant’s right of acquiring, possessing and protecting property; forbids the deprivation or seizure of a person’s property except where permitted by law. Article 22(a) of the Republic of Liberia 1986 Constitution provides that:

“Every person shall have the right to own property alone as well as in association with another.”

17. Notwithstanding the above provisions of the Respondent’s Constitution, the Respondent has failed and/or refused to accord this guaranteed right to the Applicant. This is undeniably a breach of the Applicant’s right to own property.

18. The Applicant submits that, it is trite law that the reference to a person or individual in the above provisions is not restricted to living human beings but extends to corporate legal personalities. Applicant argues that this Honourable Court has held in Suit No. ECW/CCJ/APP/02/09 – The National Coordinating Group of Departmental Representatives of Cocoa-Coffee Sector (CNDD) v. Republic of Cote D’ivoire (2004-2009) CCJELR 311 at 321 that:

“Legal persons can institute proceedings before a legal adjudicating body, for violation of rights guaranteed by instruments relating to human rights.”

19. Applicant relies on Articles 50 and 54(2) of the Revised Treaty of the ECOWAS and argues that, the Respondent is enjoined to promote trade and investment among Community Citizens with a view to achieving economic integration of the region and the continued detention of the Applicants’ funds is antithetical to these provisions. The Applicant further contends that Respondent has not provided any justification for the detention of the said funds, as mere and unsubstantiated suspicion is not sufficient for the act of the Respondent in denying the Applicant of the use of its funds. Applicant relies on the authority of The Nigerian Supreme Court in Milton Ohwovoriole SAN v. Federal Republic of Nigeria (2003) FWLR (Pt. 141) 2019 were it was held that:

“Suspicion, however well placed does not amount to prima facie evidence.”

20. The Applicant argues that the Nigerian Court of Appeal has also held in Eronini v. Eronini (2013) 14 NWLR (Pt. 1373) 32 that:

“It is trite that the Court will frown upon any manifestation of arbitrary power assumed by any person or authority over the life and property of another even if that other is suspected of having breached some law or regulation.”

21. The Applicant contends that the action of the Respondent in withholding the Applicant’s funds for a prolonged period of time on the basis of mere suspicion is tantamount to an arbitrary exercise of power. Applicant further relies on Article 7(1) (b) of the African Charter on Human and Peoples’ Rights which guarantees to an accused “the right to be presumed innocent until proven guilty by a competent court or tribunal.” In line with the adversarial system of criminal jurisprudence, it is not for an accused to prove his innocence as that will negative the above quoted provision of the African Charter on Human and Peoples’ Rights, that the accused is presumed innocent until proved otherwise. This right of an accused person is also guaranteed by Article 21 (h) of the Respondent’s 1986 Constitution.

22.  The Applicant argues that in the absence of the Applicant’s trial and conviction for being found in possession of funds from suspicious transactions, if there is any offence like that in the Liberian Criminal Code, the continued withholding of the Applicant’s funds by the Respondent is a breach of the provisions of the African Charter on Human and Peoples’ Rights, the Revised Treaty of ECOWAS and the Respondent’s Constitution. Applicant argues that Article 21(f) of the Respondent’s Constitution forbids preventive detention and enjoins the Respondent to charge a matter to Court within 48 hours of effecting an arrest and detention. The Applicants’ funds have been detained for over 48 hours.

23.  The Applicant says that its business has been grounded by the said unjustifiable act of the Respondent which has occasioned untold losses to the Applicant. Given the fact that at all times material to this application, the interest rate charged by banks and other financial institutions in both Liberia and Nigeria for lending funds for commercial activities are not less than 21% per annum, the Honourable Court is urged to direct the Respondent to refund the said funds to the Applicant together with interest at that rate. In conclusion, the Applicant urges this Honourable Court to hold that the Applicant is entitled to the refund of its Three Million Dollars (US$3,000,000.00) from the Respondent with interest at the rate of 21% per annum from 1st November, 2013 till the date of the actual refund.

24. The Applicant therefore seeks the following reliefs:

a) A declaration that the continued withholding by the Respondent of the sum of Three Million Dollars (US$3,000,000.00) property of the Applicants as suspicious transaction in the circumstances of this application is in breach of the rights to possession and ownership of property guaranteed by the African Charter of Human and Peoples’ Rights, Revised Treaty of ECOWAS and the Respondent’s Constitution and therefore null and void.

b) An order directing the Respondent to release forthwith to the Applicant the Money with interest at the rate of 21% per annum from 1/11/13 until final liquidation.

c) Cost of Fifty Thousand Dollars (US$ 50,000.00) in favour of the Applicants.

The Respondent’s case

25. On 21st August 2017, the Respondent lodged its defence and states that the Applicant (Dexter Oil) and Ritrak Supply & Trade Company limited were both incorporated under the laws of Liberia to engage in the business of exploration of liquid and gaseous hydrocarbons and importation/sales of various petroleum products, trading in oil and every type of petroleum products. That after the registration of the said companies, the Applicant did not carry out a single business activity from the date of its registration till date and based on the review of records at the Ministry of Labour, Immigration, finance and social security, the Applicant and its affiliate company Ritrak, maintain no physical presence/office or have any employees in Liberia neither have they paid any taxes in respect of any business activities undertaken by them in Liberia.

26. The Respondent alleges that after the registration of the Applicant and its affiliate company Ritrak, one Mr Chukwuemeka Ekwunife opened two accounts for the companies and designated himself as the sole signatory of both accounts. Respondent further alleges that after the establishment of both accounts, and between August 2012-May 2013 a period of ten (10) months, the Applicant’s account was credited by inward transfers totalling USD14, 101,326.00 from Nigeria, UAE and Switzerland, whilst outward transfers totalling USD17, 095,299.00 were made during the same period to accounts in India, Singapore, United Kingdom, Nigeria, UAE, France and Switzerland.

27. Further Claim by the Respondent is that a total of USD 3,206,448.00 was transferred from the Ritrak account to that of the Applicant (Dexter Oil). Ritrak’s account was credited by inward transfer of US$53,140,002.00 from Nigeria, and outward transfers amounting to USD50, 010,518.00 to Kenya, Singapore, United Kingdom, Taiwan, and Egypt; a total of US$77,000 was transferred from the account of Dexter Oil to that of Ritrak account.

28.  It is the Respondent’s case that in August 2013, the Regulation and Supervision Department of the Central Bank of Liberia (CBL) launched a special investigation into the suspicious activities of the Applicant and its affiliate company and the investigation revealed that the “Know your Customer” requirement/regulations were not adhered to by the management of the First International Bank and that the Applicant’s activities were indeed suspicious. Respondent alleges that on the 24th October 2013, Three Million Dollars (US$3,000,000.00) was again transferred by a company in Nigeria called Amni International Petroleum Development Company Limited to the Applicant’s account and the new management of the First International Bank promptly filed with the Central Bank a Suspicious Activity Report (SAR) and placed a freeze on the account.

29. According to the Respondent the Central Bank wrote to First International Bank requesting that it advised its client the Applicant that the said fund had been placed under the category of suspicious transaction under Liberian Law and consequently the Applicant is required to provide information of its business turnover, the location of its offices in Liberia, evidence of tax payment in Liberia or elsewhere and evidence of its corporate structure etc. That since the request was made to the Applicant through its bank; no information was provided by the Applicant or by the Bank to clarify the suspicion. The First International Bank informed the CBL that they could not locate Mr Chukwuemeka Ekwunife who was the sole signatory to the account and the immigration record showed that the said Mr Chukwuemeka Ekwunife had left the country since 21st December 2012 and had not returned.

30.  The Respondent claims that on 5th December 2013, Amni International Petroleum Development Company Ltd. wrote to the Central Bank requesting a recall of the Three Million Dollars (US$3,000,000.00) transferred to the Applicant’s on the ground that the transfer was made in error and that the transfer was meant for another entity by the name Quest Drilling. Respondent further alleges that Mr Chukwuemeka Ekwunife who is the sole signatory to the account did not make any contact with the Central Bank after the account was frozen to ascertain the reason why his account was frozen until April 5th 2016, when he addressed a letter to the Acting Executive Governor of the Central Bank of Liberia requesting the release of the fund which Amni Ltd. is also laying claims to as its money.

31. The Respondent contends that its recent review of the immigration records indicated that Mr Chukwuemeka Ekwunife re-entered Liberia on April 22nd 2016 and contacted some members of the Liberian Senate clearly in violation of their Constitution to intervene in the matter. Respondent alleges that upon its investigations, it discovered that Mr Chukwuemeka Ekwunife was indicted and he is being prosecuted by the Economic and Financial Crimes Commission (EFCC) of the Federal Republic of Nigeria for an alleged theft of Four Hundred and Thirty-Two Million, One Hundred Thousand Naira. (N432, 100,000.00).

32. The Respondent claims that the Liberian Government is currently carrying out an investigation in respect of the Applicant and its shareholders which involves transactions (laundering) between different countries; including the Federal Republic of Nigeria and amongst many other countries and saying more in this case would jeopardize the investigation.

Pleas in law as filed by the Respondent:

33.  The Respondent canvasses the competence of the Court to hear cases involving human rights violations and relies on the authorities of decided cases to substantiate its argument. In the case of Moussa Leo Keita V. The Republic of Mali, ECW/CCJ/JUD/03/07 this Court affirmed its competence to adjudicate on matters involving the violation of human rights within its Member States. However, the Court also held that:

“The Applicant must show proof indicative of a characteristic violation of a fundamental right; and “in the absence of any such violation, the application must be declared inadmissible”.

The Court further held that:

“The rights enshrined in the African Charter on Human and Peoples’ Rights have been so described so as to bring out clearly their content, import, and extent of enjoyment, so that any act of their violation may be qualified as a “Human Right Violation.”

Also see Hope Democratic Party and Alhaji Haruna Yahaya Shaba V. The Federal Republic of Nigeria & 5 others, ECW/CCJ/JUD/19/15; and Dr. Malachi Z. York V. The Republic of Liberia, ECW/CCJ/JUD/5/16.

34. The Respondent argues that, in the instant case, though the Applicant relies on several provisions of International Instruments, the Applicant failed to show how those provisions are applicable to its case and to prove that the freeze on Applicant’s account was arbitrary and not as a result of a previously laid down rule on Suspicious Activities. The Respondent further contends that Applicant has also failed to show why the freeze on the account should be lifted, why the money should be paid to Applicant in light of Amni International’s claim and Applicant’s failure to show the legitimate source(s) of all the money transferred through the two accounts which was unilaterally operated by Mr Ekwunife who has been indicted for theft of hundreds of millions of Naira by the Government of Nigeria.

35. The Respondent further argues that the Applicant’s money was not being held arbitrarily by relying on the authority of the case Hans Capehart Williams V. The Republic of Liberia and 4 others ECW/CCJ/JUD/25/15 in which this court defined “arbitrary act” to mean:

“Something done without fair, solid, and substantial cause or without cause based upon the law. An act is therefore arbitrary when it is not done in accordance with the principles of law.”

36. The respondent therefore seeks the following reliefs:

a.  A declaration that the application is inadmissible as it fails to state or demonstrate any act or conduct on the part of the Respondent that is indicative of a characteristic violation of a fundamental human right of the Applicant.

b.  Costs of One Hundred and Fifty Thousand Dollars (US$150,000.00) be awarded the Respondent for the unnecessary resources the Applicant has caused the Respondent to employ.

LEGAL ANALYSIS OF THE COURT:

37. At the Court Session held in Abuja on the 10th December, 2018, both parties were represented by Counsel. Applicant withdrew the Motion for an Order to join the Intervener (Mr Chukwuemeka Ekwunife) as the 1st Applicant in the Amendment of the originating process. In view of the new panel of Judges, Counsel to the parties adopted all previous processes; and the case was adjourned to 22nd January 2019 for Judgment.

38. It follows from the withdrawal of the application for an order to join an intervener and that of the amendment of the originating application by the Applicant that, the case is between Dexter Oil Limited a company and The Republic of Liberia a Member State of ECOWAS. After a careful review of the submissions of the parties, the court distilled the following issues for determination:

ISSUES FOR DETERMINATION

1.  Whether the subject matter of the case is on the violation of the Human Rights of the Applicant.

2.  Whether the Applicant is a proper person to access the Court under Articles 10 (C) and 10 (d) of the 1991 Protocol on the Court as amended by Supplementary Protocol 2005.

3.  Whether the Applicant’s Right to Property has been violated.

1. Whether the subject matter of the case is on the violation of the Human Rights of the Applicant.

39.   It is trite that jurisdiction is conferred by statute and by the rules and procedures relating to the establishment of the Court. Article 9 (4) of the 1991 Protocol on the Court as amended by Supplementary Protocol 2005 of the Community Court of Justice, ECOWAS, prescribes:

“The court has jurisdiction to determine cases of violation of human rights that occur in any member state”.

40. The Applicant alleges a violation of its right to property by the Respondent through the unlawful confiscation of the sum of Three Million Dollars (US$3,000,000.00) which was deposited into its company account with First International Bank Liberia Limited.

41. The Respondent on the other hand contends that after the registration of the Applicant, it did not carry out a single business activity in Liberia from when it was register till date. Instead, the Applicant and its affiliate company Ritrak Bank accounts were between August 2012-May 2013 a period of ten (10) months, credited by inward transfers totalling USD14, 101,326.00 from Nigeria, UAE and Switzerland, whilst outward transfers totalling USD17, 095,299.00 were carried out during the same period to accounts to India, Singapore, United Kingdom, Nigeria, UAE, France and Switzerland. The Inflow and outflow of funds without any visible business activity, made the Central Bank of Liberia launched a special investigation and the investigation reveals suspicious activities in the Applicant’s account. On the 24th October 2013, Three Million Dollars (US$3,000,000.00) was again transferred into the Applicant’s account which prompted the freezing of the said account.

42.  The Applicant in response to the Respondent’s defence argues that the transactions which gave rise to the transfers were legitimate and its account with First International Bank was duly opened after satisfying all legal requirements. The crux of the Applicant’s application is predicated on an alleged seizure of the sum of Three Million Dollars (US$3,000,000.00) by the Respondent on grounds of allegation of suspicious activities in the Applicant’s account. The Applicant maintained that in so doing and without legal justification, the act of the Respondent’s bank amounts to a violation of their right to property; under Article 14 of the African Charter on Human and Peoples’ Rights which states that:

“The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.”

43. In Hissein Habre v. Senegal (2010) (CCJELR) pg. 65 the Court held that:

“to decide whether or not it has jurisdiction to hear a case, it has to examine if the issue submitted deals with the rights enshrined for the benefit of the human person and arising from the international or community obligation of the state as human rights to be observed, promoted, protected and enjoyed and whether the alleged violations was committed by the member state of the community.”

44. Similarly, in Mamadou Tandja (2010) CCJELR pg. 109 & Bakare Sarre & 28 Ors v. Mali (2011) (CCJELR) pg. 57 the court held that:

“Once a human rights violation which involves international or community obligations of a member state is alleged, it will exercise its jurisdiction over the case.”

45. In view of the facts above, this case comes under the purview of Article 9 (4) of the 1991 Protocol on the Court as amended by Supplementary Protocol 2005 of the Community Court of Justice, ECOWAS as it alleges violation of human rights. The Court therefore holds that it has jurisdiction to hear this case.

2. Whether the Applicant is a proper person to access the Court under Articles 10 (C) and 10 (d) of the 1991 Protocol of the Court as amended by the Supplementary Protocol 2005.

46. In considering the jurisdiction of the Court, it is imperative that if the court finds that the subject matter is an alleged Human Rights violation, it must also consider whether the parties are proper parties before it. The Supplementary Protocol 2005 has made provision for both individual and legal persons, for example corporate bodies to access the court, as well as the circumstances under which they can so do. The Court will be guided by Article 10 (C ) and 10

(d) of the Supplementary Protocol 2005 of the Court , under which the applicant brought the action wherein it proffered strong arguments that, it is entitled to access the Court against the Respondent who it claims is a proper party under those provisions.

47. Article 10(C) of the 1991 Protocol on the Court as amended by the Supplementary Protocol 2005 provides:

“Access to the Court is open to individuals and corporate bodies in proceedings for the determination of an act or inaction of a community official which violates the rights of the individuals or corporate bodies.”

48. It follows from Article 10 (C) above that the proper party should either be an individual or a corporate body bringing an action against a Community Official for an act or omission which violates their rights. From the available record before the Court, Dexter Oil Limited is a corporate body duly registered under the extant law of the Republic of Liberia to operate as a Company with interest in the Oil sector and therefore has a right to bring an action against a community official under this provision. The question to be resolved is whether the Respondent is a community official. Who then is a Community official?

49.  The 7th edition of Black’s Law Dictionary, published by Bryan A. Garner defines the term “Official” as:

“A person holding or saddled with the responsibilities of public office or a person authorised to act on behalf of a corporation or organization, especially in the capacity of a subordinate.”

50. Article 9 (2) of the 1991 Protocol on the Court as amended by the Supplementary Protocol 2005 of the ECOWAS Court reads as follows:

“The Court shall have the power to determine any non- contractual liability of the Community and may order the Community to pay damages or make reparation for the official acts or omissions of any Community institution or Community officials in the performance of official duties or functions.”

51.  In the absence of any statute defining a Community Official, it can be described as an employee of any ECOWAS Institution who occupies a position of responsibility, whose actions or omissions in the exercise of official functions on behalf of the Institution may attract vicarious liability. The above description of a Community Official is consistent with the decision of this Court in the case of Peter David v. Ambassador Ralph Uwechue, ECW/CCJ/RUL/03/10 @55 where the court held that:

“The instant action can also be considered as an action for extra- contractual liability against an official of the Community, who at the time of the incident was the Special Representative of the Executive Secretary of the ECOWAS in Cote d’Ivoire.”

52. It follows a Community Official can amongst others either be the head or officers of any ECOWAS institution. A member state is definitely not contemplated in Article 10 (C) as cited above. Supporting the above interpretation is the decision of this Court in the case of Linas International NIG. LTD v. Ambassador of Mali, Embassy of Mali & the Republic of Mali EWC/CCJ/JUD/02/09 @ 19; which is on all fours with the instant matter. In that case, the Plaintiff, a corporate body brought an action against the above stated Defendants which includes a Member State under Article 10 (C) of the 1991 Protocol on the Court as amended by the Supplementary Protocol 2005 on the Community Court of Justice, ECOWAS, and the Court held that:

“The third Defendant is the State of Mali who is a Member of the Community. It is not a corporate body and is neither invested with any public office of the community. It cannot therefore be likened to an official of the Community. It appears clearly from the foregoing that the three Defendants are not officials of the community.”

53. The Court after a careful analysis of the Provisions of the Protocol relied upon by the Applicant comes to the conclusion that an action cannot be sustained against the Respondent; Member State based on Article 10 (c) on the 1991 Protocol of the Court as amended by the Supplementary Protocol 2005 on the Community Court of Justice, ECOWAS. The Republic of Liberia, is not a Community Official and therefore, not a proper party before this Court against whom an action can be instituted against under Article 10 (C) of the 1991 Protocol on the Court as amended by the Supplementary Protocol 2005 and the Court so holds.

54. The second provision under which the Applicant instituted this action is Article 10 (d) of the 1991 Protocol on the Court as amended by the Supplementary Protocol 2005 which reads as follows:

“Access is open to individuals on application for relief for violation of their human rights; the submission of application for which shall:

i)          not be anonymous; nor

ii)         be made whilst the same matter has been instituted before another International Court for adjudication;

55. On the Provision of Article 10 (d) which must also be read in context as prescribed in the text that, individuals can maintain action on violations of human rights if the application is not anonymous and not before another International Court. Dexter Oil limited is not an individual within the context of this Article but a corporate body and duly registered under the laws of Liberia to operate a business concern. It follows on a strict interpretation of the English text of Article 10 (d) that Applicant not being an individual has no capacity to institute action against the Respondent ( a member state) for violation of Human Rights.

56. The above strict interpretation of Article 10 (d) of the English text continues to reflect the opinion of the Court in the majority of cases that have been decided, however in very few cases, the Court has ruled that Article 10 (d) of the French text accommodates both individual and legal persons. Therefore, in applying article 10(d) of the Protocol as amended, the Court has arrived at divergent decisions in respect of who can access the Court. This may be attributable to the slight difference between English and French texts of the Article.

57. The English texts provide that access to the Court is open to the following:

Individuals on application for relief for violation of their human rights; the submission of application for which shall:

1, not be anonymous; nor

ii. be made whilst the same matter has been instituted before another International Court for Adjudication;

58. On the other hand, the French text of the same Article provides as follows:

Peuvent saisir la Cour:

d) toute personne victim de violations des droits de I’ homme; l demande soumise a cet effet:

i) ne sera pas anonyme;

ii) ne sera pas portee devant la Cour de Jutice de la Communuate lorsqu’ elle a deja ete portee devant une autre Cour international competente.

59. The English text of Article 10(d) of the Protocol on the Court as amended clearly gives access to individuals for human rights violations cases. Whilst, the French texts gives access to toute personne victime. They do not exactly mean the same thing. Whereas individual means natural persons, toute personne victime, means every person that is a victim, which has been interpreted as natural or legal persons in the French version of the text.

60. In interpreting these provisions, the Court has come to divergent decisions. In 2009, the ECOWAS Court of Justice in its judgment in THE NATIONAL CO-

 

ORDINATING GROUP OF DEPARTMENTAL REPRESENTATIVES OF THE COCOA- COFFEE SECTOR (CNDD) v. REPUBLIC OF COTE D’IVOIRE, (2004 – 2009) CCJELR, 311, held that:

“Legal persons be it associations or limited liability companies, can institute actions for human right violations.”

61. It relied on Article 10(d) (the French version) of the 1991 Protocol of the Court as amended by the Supplementary Protocol 2005 and very heavily on the decisions of other Regional Courts. It cited cases of other regional courts, where associations and limited liability companies have successfully maintained actions for human rights violations in respect of rights guaranteed by instruments relating to human rights. The Court has also held that an individual or a corporate body can be a Plaintiff in a Human rights case but must be a victim of Human Rights abuse. The Court’s emphasis is on being a “Victim” an essential requirement. In CENTER FOR DEMOCRACY AND DEVELOPMENT (CDD) AND ANOR V. MAMOUDU TANDJA & ANOR, (2011) CCJELR, 103, the Court held as follows:

27. In the exercise of its jurisdiction on human rights protection, the Court shall ensure that all the conditions for bringing the case before it are fulfilled. In such circumstances, the Court shall entertain cases filled by “individuals on application for relief for violation of their human rights”, as stipulated in paragraph (d) of the new Article 10 of the Protocol on the Community Court of Justice as amended by Protocol A/SP.1/01/05 of 19th January 2005, which provides that “Access to the Court is open to……Individuals on application for relief for violation of their human rights”. Pursuant to this article, cases shall be brought before the Court by natural or legal persons endowed, within the framework of their national laws, with the required legal capacity and who, in addition, shall justify their condition of being a victim”

62. In ALHAJI MUHAMMED IBRAHIM HASSAN V. GOV OF GOMBE STATE, (2012) CCJELR, 81, the Court held as follows;

46.“Paragraph (d) of new Article 10 of the Protocol on the Community Court of Justice as amended by Protocol A/SP.1/01/05 of 19 January 2005 provides: “Access to the Court is open to … individuals on application for relief for violation of their human rights”. By virtue of this Article, for every action relating to human rights protection, cases before the Court must be filed by an individual or a corporate body who fulfils the requirement of being a victim. (See Judgment No.ECW/CCJ/JUD/05/11 of May 2011 in Suit No. ECW/CCJ/APP/07/09, CDD and CDHRD v. Mamadou Tandja v. Niger, paragraphs 27 and 28). As far as the texts of the Court are concerned, it is the essential criterion which enables one to declare whether an application for human rights violation is admissible, even though not an exclusive criterion.”

63. In contrast to the above decisions, in 2010, 2011, 2012, 2013, 2014 and 2015, the Court gave decisions in which it held that, “individual” in Article 10(d) refers only to natural persons to the exclusion of other legal persons and that no corporate body can bring a human rights case as a Plaintiff, as an alleged victim of human rights abuse. In other words, that Article 10(d) of the Protocol on the Court as amended is not open to corporate bodies as victims of human rights abuse since it is only open to human beings.

64. In SERAP v. PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA (2010) CCJELR, 231, this court held as follows:

“Despite the campaign launched by advocacy organizations towards new developments, the bare truth, however, is that the process of codification of international Law has not yet arrived at a point that allows the claim against corporations to be brought before International Courts. Any attempts to do so have been dismissed on the basis that the Companies are not parties to the treaties that the international courts are empowered to enforce. This understanding is widely shared among regional courts with jurisdiction over Human Rights.

That being the current situation at the international level, the only available alternative left to those seeking for justice against corporations has been domestic jurisdictions.”

65. Similarly in STACREST INVESTMENT LTD v. PRESIDENT ECOWAS COMMISSION, (2011) CCJELR, 165 the Court expressly held:

“That no action could lie against a corporate body in human rights cases before this Court. By parity of reasoning, the converse of the decision just cited is equally true and that is, no corporate body can bring a human rights case before this Court as a Plaintiff as an alleged victim of human rights abuse. Thus the provisions of the ACHPR do not avail the Plaintiff in this Court in so far as they complain about human rights abuse against them as a Company”

66. This Court also In OCEAN KING NIG. LTD v. REPUBLIC OF SENEGAL, (2011) CCJELR 139, held as follows in paragraph 48 and 49 of the judgment:

“It is noteworthy that whilst Article 10(c) gave the right of access to individuals and corporate bodies, Article 10(d) gave the right of access in human rights violation causes to only individuals.

49. That leads the Court to find out the meaning of individuals within the context of Article 10 of the Protocol. The Court thinks individuals within the context of Article 10 of the Protocol refers to only human beings and no more. This is so because Article 10(c) mentioned individuals and corporate bodies. What that means is that the legislation sought to distinguish between human beings and other legal entities.”

67. The Court went further to clarify in THE INCORPORATED TRUSTEES OF THE MIYETTI ALLAH KAUTAL HORE SOCIO-CULTURAL ASSOCATION v. FEDERAL REPUBLIC OF NIGERIA, (2012) CCJELR, 171 that:

“Thus there is a clear distinction between these two classes of cases, one in which the corporate body sues as the victim and the other in which it sues on behalf of the victim, the victim here being identified as a human being. In the former situation the corporate body has no locus or capacity to sue, but in the latter situation it has.”

68. The time is ripe to revisit the interpretation of “Tout Personne Victime” as decided in the above cases in order to reconcile the divergent jurisprudence and come out with a well-reasoned decision on the issues for the guidance of the parties, lawyers appearing before the Court and Scholars.

69. Whereas, the English text of article 10(d) clearly states individuals (natural persons), the French texts of the same Article states tout personne victime” (every person that is a victim). Personne in the French text includes an individual who is a physical person and a corporate body which is a juristic person. The key word however is that the personne must be a victim of human rights violation.

70. It is the opinion of this Court that, if Article 10 (c) (English and French Texts) categorically includes both individual and corporate bodies, same would have been repeated in 10 (d) if that was the intention of the drafters of the law. The Court therefore affirms that it is not the intention of the statute to accommodate corporate legal person in Article 10 (d) of both versions of the text.

71.  In order to harmonise the prior inconsistent decision of the Court as highlighted above, this Court in the exercise of its inherent power hereby departs from all decision wherein corporate body are accommodated under Article 10 (d) of the 1991 Protocol on the Court as amended by the Supplementary Protocol 2005; and affirms only individuals have access for Human Rights violation except in internationally accepted conditions.

72. The Court having decided that Article 10 (d) anticipates only natural person, it is nonetheless not unmindful of its jurisprudence and that of other International Courts creating exception and granting corporate bodies’ access to ground an action of violation of their fundamental Rights against a member state. Human rights imply the rights that belong to all human beings irrespective of their nationality, race, caste, creed and gender amongst others; like right to life, right to health and right against torture, inhuman and degrading treatment which are specific to a human being. On the other hand right of a corporate body, are rights that are fundamental and necessary for the existence of a corporate body which a legal entity can enjoy and be deprived of; for example right to freedom of speech as the corporation is entitled to speak about its product; right to property as the corporation generates profit in shares and, or cash and is entitled to the quiet enjoyment of same. The established exceptions under which corporate bodies can ground an action are; rights that are fundamental rights not dependant on human rights and they include right to fair hearing, right to property and right to freedom of expression.

73. In OCEAN KING NIGERIA LIMITED V. REPUBLIC OF SENEGAL ECW/CCJ/JUD/07/11; the Court held that:

“The right to fair hearing is not dependent on human rights and the Defendant owes an obligation to every ECOWAS citizen or entity to ensure fair hearing within its territory, failing which this Court will have the right to entertain an application by an aggrieved party even if it is based on the Court’s inherent jurisdiction.”

74. Similarly, The European Court of Human Rights ruled in GORRAIZ LIZARRAGA & ORS V. SPAIN (Application no. 62543/00 judgment Strasbourg April, 2004); that Legal entity can be a victim under Article 6 of the Convention which protects the right to fair hearing. ; in that case, an association alleged the violation of Article 6 (1), the Court decided that the Applicants association may be considered a victim because they are claiming a violation of the right to fair hearing on behalf of their members and the Court held that:

Associations also qualify for protection under Article 6 (1) if they seek recognition of specific rights and interests of their members or even of particular rights to which they have a claim as a legal person, such as the right of the public to information and to take part in decisions regarding the environment.”

75. The European Court of Human Rights in GROPPERA RADIO AG AND OTHERS V SWITZERLAND (Application no. 10890/84 judgment Strasbourg 28 March 1990, Groppera Radio AG); held that corporate bodies can ground action for violations of Freedom of Expression; a limited liability company incorporated under Swiss law and other Applicants, brought an action against Switzerland contending that the ban on cable retransmission in Switzerland of their broadcasts from Italy infringed their right to impart information. Whereas the government on the other hand argued that the Applicants were not “victim” within the meaning under Article 25(1) of the Convention. The Court noted that:

“By ‘victim”, Article 25(1) means the person directly affected by the act or omission which is in issue,”

76.  With regards to the right to Property, in CHUDE MBA V. REPUBLIC OF GHANA ECW/CCJ/JUD/10/13, this court held with regards to Article 14 of the ACHPR that:

“Unlike other provisions of the Charter, the text just quoted above does not specify whether or not the right to property is only guaranteed to individuals or people. It is has therefore not excluded legal persons, which includes corporations. Therefore, Corporations may also benefit from the right to property as guaranteed by Article 14 above and as recognized by the National Laws of Members States and by the Council of Europe through protocol 1 to the European Convention of Human Rights. ”

77. Having found that the right to property is one of the exceptions that grounds a corporate legal entity the right to bring a claim under Article 10 (d), and in the light of the fact that one of the reliefs sought by the Applicant is the right to property, the Court finds that the Applicant can validly maintain an action for the alleged violation of its right to property.

3. Whether the Applicant’s Right to Property has been violated.

78. The crux of the Applicant’s application is predicated on an alleged seizure of the sum of Three Million US Dollars (US$ 3,000.000.00) by the Respondent on grounds of allegation of suspicious activities in the Applicants’ account. The Applicant’s maintained that in so doing and without legal justification, the act of the Respondent’s bank amounts to a violation of its right to property. The African Charter on Human and Peoples’ Rights guarantees the right to property. Article 14 of ACHPR states:

“The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”

79. Property can be defined as a possession that people can lay claim to upon provision of legal title, proof of ownership or any document conferring the right of ownership. In CENTRO EUROPA 7 S.R.L. AND DI STEFANO v. ITALY (Application no. 38433/09) JUDGMENT STRASBOURG 7 June 2012, the ECHR held that:

“In considering the provisions of Article 1 of Protocol No. 1 of the European Court of Human Rights (which is in pari materia with Article 14 of the African Charter), the concept of property or possession is very broadly interpreted. It covers a range of economic interests which include: movable or immovable property, tangible or intangible interests, such as shares, patents, an arbitration award, the entitlement to pension, the right to exercise a profession, a landlord’s entitlement to rent, the economic interests connected with the running of a business.”

80. It follows from the above that, money being an economic interest connected with the running of a business can be classified as property which can be owned by an individual or corporate bodies. it is conclusive therefore that the sum of Three Million Dollars (US$3,000,000.00) credited into Dexter Oil Limited Bank account with the First International Bank Liberia, is the property of Dexter Oil Limited. It will be recalled that the Applicant insists that the said cash deposited into its accounts via bank transfer from a Nigerian bank is Dexter Oil’s Property and claims that, the freeze order and refusal by the respondent to release the said sum of money is a violation of its rights to own property.

81. The Respondent provided documentary evidence to the Court to dispute the ownership claim of the Applicant by a way of letters of demand by AMNI International Petroleum Development Limited, another corporate legal entity laying claim to the same money on the grounds that it was erroneously transferred to the Applicant and demands a reparation of the money. The Applicant on the other hand, did not controvert these claims but rather maintains that, it explains the source.

82. On the face of it, the money can be said to be the Property of Dexter Oil Limited, however it is trite that the basic requirements that confers the right of property is the ability to establish or proof ownership by the title deeds and other documentary evidence. Since the ownership of the said property is under contention, the inability of the Applicant to prove ownership robs the company of any proprietary right to the disputed sum of money. Even where the Applicants claim of ownership is substantiated, it is trite that the right to property in Article 14 of the ACHPR is not absolute as it may:

” be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”.

The above exception accommodates interference of peaceful enjoyment of property in the appropriate conditions.

83. In GOGITIDZE AND OTHERS v. GEORGIA (Application no. 36862/05) STRASBOURG 12 May 2015, the ECHR, held that:

“An essential condition for interference to be deemed compatible with Article 1 of Protocol No. 1 (which is in pari-materia to Article 14 of the ACHPR) is that, it should be lawful: the second paragraph recognises that States have the right to control the use of property by enforcing “laws”. Furthermore, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions”.

Having regard to the above analysis, it is imperative to determine whether or not the continued act of the Respondent in confiscating the Applicants funds on reasonable suspicion is in the public interest and in accordance with the law.

84. The Respondent contends that after the registration of the said companies, the Applicant did not carry out a single business activity from the date of its registration till date, instead it operated accounts in which between August 2012-May 2013 a period of ten (10) months, the Applicant’s account was credited by inward transfers totalling USD14, 101,326.00 from Nigeria, UAE and Switzerland, whilst outward transfers totalling USD17, 095,299.00 were made during the same period to accounts to India, Singapore, United Kingdom, Nigeria, UAE, France and Switzerland.

85. Furthermore, the Respondent contends that with the deposit of the Three Million Dollars (US$3,000,000.00), it became important to place the Applicant account under alert as suspicious transfer with the possibility of money laundering activities. The respondent action is thus to prevent money laundering.

86.  Respondent further contends that Applicant failed to comply with the National law specifically, Section 2 (5) of the Anti-money laundering and combating the financing of Terrorism (AML/CFT) Regulations, also the Tax law on remittance of tax and in addition failed to provide evidence of legitimate business activities carried out within the jurisdiction of the Respondent as required by law.

87. It is the opinion of this court that Respondent action of placing a freeze on the account of the Applicant is in accordance with the law and also serves a legitimate aim of protecting the public interest but, the Court notes that the Respondent has the duty to carry out a very prompt and effective investigation.

88. The duty for diligent, prompt and effective investigation is incumbent upon a state and it is not negotiable to avoid infringement upon the rights of citizens even in the face of a seemingly justified action in accordance with the law. For an investigation to qualify as effective, the Respondent must show that it took all reasonable steps available to them to secure the evidence concerning the incident timeously.

89. In Velasquez Rodriguez v. Honduras, judgment July 29, 1988, Inter-AM. Ct.H.R (Ser. C) No. 4 (1988) case, the Inter American Court stressed that:

“The obligation to investigate must be fulfilled in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the state as its own legal duty not as a step taken by private interest that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. Obligation to investigate is an obligation means rather than result. Therefore once state authorities are aware of an incident, they should without delay institute an impartial and effective means to unravel the truth.”

90. Following from the above, in the circumstances of the instant case, there should be some form of a more effective investigation than done in the past five years. In the light of the Respondent’s submission before this Court, the entire investigation is characterised by inadequate and imprecise record of the steps that were taken and therefore falls short of a proper, thorough, adequate and effective investigation required by the duty incumbent upon a state to carry out diligent and prompt investigation.

91.  The Court having reviewed all evidence holds that the onus of proof of legitimacy of the said $3Million lies on the Applicant and having failed to do so, is not entitled to the claim of violation of right to property and the Court so holds.

92. It is therefore the opinion of the Court, that the Respondent has been tardy in conducting prompt and effective investigations in breach of its obligations and this is condemned by the Court. However the Court is unable to make any consequential orders in favour of the Applicant because it is not unmindful of its above decision that the Applicant has not discharged the onus of proof of the legitimacy of the $3Million in question and that the Respondent is entitled to freeze the account of the Applicant in accordance with its national laws with the legitimate aim of protecting public interest.

93.  This Court after examining the processes filed by the parties; and after hearing counsel in the open Court herein, and for the reasons canvassed above, decides as follows:

 

DECISION:

-The Court has jurisdiction to adjudicate on this case as the claim is on violation of Human Rights.

- That the suit cannot be maintained against the Respondent as a Member State under Article 10 (c) of the text.

-  The Applicant is a Proper party under Article 10 (d) to the extent of the internationally recognised exception.

- Applicant right to property has not been violated by the Defendant.

- The case is hereby dismissed and parties should bear their own cost.

Thus pronounced and signed on this 6th day of February, 2019 in the Community Court of Justice, ECOWAS Abuja, Nigeria.

 

AND THE FOLLOWING HAVE APPENDED THEIR SIGNATURES:

 

Hon. Justice Edward Amoako ASANTE                        - Presiding

Hon. Justice Dupe ATOKI                                           - Member/Judge Rapporteur

Hon. Justice Keikura BANGURA                                   - Member Assisted by

Tony ANENE-MAIDOH                                                - Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 6 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Bangra JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE OF

ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN IN ABUJA NIGERIA

ON THE 27TH OF FEBRUARY, 2019

 

SUIT NO: ECW/CCJ/APP/06/18

JUDGMENT NO. ECW/CCJ/JUD/09/19

 

BETWEEN:

 

JUSTICE JOSEPH WOWO                      PLAINTIFF

AND

THE REPUBLIC OF THE GAMBIA          DEFENDANT

 

COMPOSITION OF THE COURT:

HON. JUSTICE EDWARD AMOAKO ASANTE                       - PRESIDING

HON. JUSTICE GBERI-BE QUATTARA                                 - MEMBER

HON. JUSTICE KEIKURA BANGURA                                    - MEMBER

 

ASSISTED BY:

MR. TONY ANENE-MAIDOH - CHIEF REGISTRAR


JU​DGMENT


PARTIES

The Plaintiff is a Nigerian and a former Chief Justice of the Republic of The Gambia.

Although the Plaintiff initially designated two Defendants in this suit; namely the Republic of The Gambia and its Ministry of Justice, the Court, in line with its jurisprudence struck out the name of the latter as it is bereft of a legal personality distinct from that of the State, being just a constituent part and the legal arm of the Defendant. See the case of HOPE DEMOCRATIC PARTY & ANOR. V. THE FEDERAL REPUBLIC OF NIGERIA AND 5 ORS. Suit No. ECW/CCJ/APP/04/15 where the Court held that “2nd through 6th Defendants not being competent parties/Defendants before the ECOWAS Community Court of Justice, the case against these defendants is ruled inadmissible (…) and they are dropped as improper parties before the Court, and the case accordingly dismissed severally and jointly”.

In effect the only defendant in the instant suit is the Republic of the Gambia a Member State of the ECOWAS, and a signatory to the Revised Treaty establishing the ECOWAS.

THE PLAINTIFF’S SUMMARY OF FACTS

The application is premised on an alleged violation by the Defendant of the Plaintiffs legitimate rights as enshrined in Articles 1, 2, 3, 4 & 19 of the African Charter, Articles 6 & 7 of the Universal Declaration of Human Rights and section 24 of the 1997 Constitution of The Gambia.

The Plaintiff avers that he served as Chief Justice of the Republic of The Gambia in 2013, under the administration of President Yahaya Jammeh.

Plaintiff claims that owing to his nationality, he suffered discrimination by most of the members of The Gambian Bar to the extent that the then Bar President, Ms Ubna Farage and the Minister of Justice, Ms. Amie Joof, sometime in the year 2013, made frivolous allegations of corruption against him which led to the Plaintiff’s removal from office without prior investigation. The Plaintiff states that he contested his removal through the security authority who initiated an investigation into the matter. At the completion of the investigation, the Plaintiff anticipated the announcement of the outcome by the office of the then President Yahaya Jammeh which until date has not been announced. The Plaintiff contends that the refusal to announce the outcome of the investigation is hinged on the realization of the falsity of the allegations made against him.

According to the Plaintiff, in view of this development, he called for a press conference to publicly state that the allegations of corruption made against him were false and that the President erred in removing him from office without compliance with the proper procedure. The then President, according to the Plaintiff perceived his action as an affront to his authority so publicly declared that he must be put in jail.

The Plaintiff avers that the then Minister of Justice, under the instructions of the then President, filed a frivolous case against him on allegations of abuse of office and false information under sections 90, 112, 102 and 106 (i) (d) of the Criminal Code, vol iii Revised Laws of The Gambia.

The Plaintiff states that while he was in office, he was reliably informed by some staff of the Judiciary of compilation of documents that was done in the Judiciary without recourse to the proper procedure. Plaintiff went on to say that upon hearing this, and in his capacity as the acting Chief Justice, he wrote a letter to the National Intelligence Agency (NIA) to investigate the issue.

It is the case of the Plaintiff that upon investigations, a report dated the 18th of December, 2012, was produced which clearly commended the Plaintiff and indicted two others. The plaintiff claims that to his utter surprise, he who has been commended was charged and convicted for false information whereas the two persons indicted by the report were not charged with any offence.

He further states that prior to his trial, he was presiding over a case of corruption as the Chief Justice, involving one Justice Emmanuel Nkea. He says upon his removal from office, his successor assigned his own trial to the said judge who was standing trial before him. Another perplexing concern of the Plaintiff is that the prosecution of his case was remitted to one Legunju Vitalis, a state Counsel who is a nephew to the trial Judge and at that time, was living in the same house with the trial judge.

Plaintiff claims that during the trial, his Counsel filed a motion urging the trial Judge to recuse himself from proceeding with the matter based on the above grounds but the trial judge failed to do so. He further avers that, sometime in 2014, the matter was adjourned for adoption of brief but when the case was called, the trial Judge deliberately ignored all the documents and testimonies of witnesses, convicted and sentenced the Plaintiff to two (2) years imprisonment.

The Plaintiff maintains that the whole trial was a charade and a well-acted drama to achieve a pre-conceived intent of putting him in jail at all cost and without hearing. The Plaintiff asserts that he was sent to Mile 2 prison without access to the outside world, including his lawyers.

The plaintiff states further that upon enquiry, it was discovered that the trial Judge in his case, Justice Emmanuel Nkea did not attend the Sierra-Leone law school as he claimed, neither did he attend any other law school.

The Plaintiff further asserts that he was granted a presidential pardon in August, 2015 as a result of pressure from the governments of Nigeria and United States of America.

The Plaintiff maintains that his fundamental human rights were violated by the Court of Appeal and the Supreme Court where in the latter Court, the prosecution clearly stated that there was no case against the Plaintiff and therefore they were not filing any brief. To this end, and without relying on any law, the Court dismissed the case against the Plaintiff.

In Conclusion, the Plaintiff restates that he has been seriously injured by the conduct of the Defendant by denying him the benefits of a fair, independent and impartial trial, and therefore urged the Court to restore his rights.

On the 20th of March 2018, the Plaintiff applied for a judgment to be entered in default in view of the Defendant’s failure to lodge a defence within time. Before the Court could pronounce on the Plaintiff's application for default judgment, the Defendant on the 24th of May 2018, filed an application for extension of time within which to file its defence, stating reasons why it was unable to file the defence within the prescribed time. The Defendant filed its defence to the Plaintiffs application together with its own application for extension of time.

The originating Application of the Plaintiff was initially endorsed with three reliefs which said reliefs were amended upon application to the Court dated 14th June, 2018. The Plaintiff added an additional relief upon the grant of the amendment.

 

ORDERS BEING SOUGHT BY THE PLAINTIFF

On the basis of the foregoing, the Plaintiff is seeking the following amended reliefs from the Court:

1.  A DECLARATION that the trial of the Plaintiff by the trial judge who was undergoing some corruption allegation proceedings before him is a violation of his human rights.

2.  A DECLARATION that the Defendant pay the Plaintiff the sum of Twenty Million US Dollars ($20,000.000) plus six percent (6%) interest per annum for violation of his human rights.

3.  A DECLARATION that Defendant pays successful Attorney’s fees.

4.  A DECLARATION that the Plaintiff’s trial is a violation of his human rights.

 

DEFENDANT’S SUMMARY OF FACTS

In its defence filed on 24th May, 2018, the Defendant denied each and every material allegation of fact contained in the Plaintiff’s application and contends that the Plaintiff had a good working relationship with the Gambian Bar Association during his tenure of office which commenced sometime in 2000, till his arrest and trial for abuse of office and other offences in the year 2013.

On the alleged petition, the Defendant maintained that the said petition by the Gambian Bar Association was addressed to the Judicial Service Commission alleging serious malpractices by the Plaintiff based on certain revelations contained in an audio recording published by the press. The Defendant stated further that the Plaintiff was removed from office by the President in consultation with the Judicial Service Commission after investigations and due deliberations pursuant to the petition.

The Defendant vehemently opposed the Plaintiff’s assertion that the President receives and announces outcomes of police investigations and further stated that, on the contrary criminal investigation reports are forwarded to the office of the Director, Public Prosecution at the Attorney General’s Chamber for legal advice and further actions as may be necessary. The Defendant therefore maintained that the Plaintiff was properly charged based on the outcome of the investigation report submitted to the Attorney Generals Chambers by the police, the legal opinions and surrounding facts.

According to the Defendant, the said investigations, only offered a limited reprieve for the Plaintiff’s actions in referring the matter to the Gambian National Intelligence Agency, and did not commend or clear the Plaintiff of any wrong doing. The Defendant again stated that the investigation reports are not conclusive in the sense that final decision to bring charges or not rests with the Director of Public Prosecution.

The Defendant denied that the trial judge in his case had any corruption case before or during the trial of the Plaintiff and that primarily informed the refusal of his application requesting the trial judge to recuse himself from the trial since the facts deposed to in the affidavit disclosed no grounds to warrant granting the application. The Defendant further submitted that it did not file an affidavit in opposition to the appeal at the Supreme Court because the allegations were targeted at the trial Judge.

The Defendant maintained that the prosecution was led by a special litigation counsel and assisted by a state counsel Legenju Vitalis, who to all intents and purposes was a state counsel at the Attorney General’s Chamber. The Defendant claims that the Plaintiff was accorded a free and fair treatment during the trial and the whole proceedings were witnessed by the press officials of both the American and Nigerian Embassies without protest. In the estimation of the Defendant, the Plaintiff was accorded all his rights as a litigant and that even his appeals were given speedy and fair attention devoid of any deprivation of access to his Counsel while in prison.

On the Plaintiff’s allegation about the trial judge not possessing the requisite qualifications, the Defendant maintained that the trial judge was employed upon meeting the requirements for employment.

The Defendant stated that the Plaintiff’s case at the Supreme Court succeeded in part to which they annexed copies of the said judgment. Furthermore, the Defendant affirmed that the Plaintiff was granted remission of sentence as part of a general exercise of the Presidential powers of prerogative of mercy to over three hundred (300) prisoners as published in the Official Government Gazette No. 21, vol 132.

In conclusion, the Defendant reiterates that the Plaintiff’s rights were never denied at any point during the trial nor after his conviction and thus he is not entitled to any restoration of rights as none have been violated in the first place.

 

THE PLAINTIFF’S REPLY TO THE DEFENDANT’S STATEMENT OF DEFENCE

On the 31st of May 2018, the Plaintiff filed its response to the Defendant’s defence.

In his reply, the Plaintiff reiterated categorically that most of the members of the Gambian Bar were not happy with his appointment due to his nationality. He also stated that contrary to the Defendant’s assertion, the petition from The Gambian Bar dated 2nd July, 2013, against the Plaintiff was addressed to the Attorney General and Minister of Justice, and not to the Judicial Service Commission. The Plaintiff further contends that the Attorney General is not a member of the Judicial Service Commission and would at the hearing of this suit rely on the provisions of sections 145, 146, 147 and 148 of the Gambian Constitution 1997 as amended.

In advancing his position, the Plaintiff maintained that as the chief Justice at that time, he was the chairman of the Judicial Council and there was no deliberations or consultation with the President before his removal, neither was there any investigations in that regard. Again, the fact that he was in the office performing his duties until the close of the day on Friday, 19th July 2013, while the letter terminating his employment which emanated from the Attorney General and Minister of Justice, on the directives of Security operatives was received on Saturday, the 20th of July, 2013.

The Plaintiff replied to the Defendant’s statement of defence that the investigations conducted (on abuse of office) were after the termination of his appointment and the said investigations clearly exonerated him and that was the reason why the prosecution refused to produce the report in Court. Plaintiff again replied that the prosecution only produced the report on false information which equally exonerated the Plaintiff. The said report has been annexed to his application as “ANNEXURE -5”

The Plaintiff also maintained in his reply that the matter before the Court of Appeal was not in compliance with the Court of Appeal Rules as parties were not called to settle the records.

The Plaintiff acknowledged that the ECOWAS Court is not a Court of Appeal to re- open and re-litigate the matter decided at the National Courts. The Plaintiff however maintained that the Defendant was given ample opportunity to deny the allegations against the trial judge during the trial of the Plaintiff but they refused to do so because the allegations were true. He further contends that one of the prosecuting Counsel withdrew from the case in the face of the injustice to which the records of proceedings, the ruling and judgment of the High Court clearly shows that Mr. Legenju Vitalis was prosecuting alone. That the Defendant is only trying to mislead the Court in this regard.

The Plaintiff insists that he was not accorded free and fair treatment during the trial. To this effect, letters of protest were sent by the American and the Nigerian Embassies to the Gambian Government. He also maintained that he was not allowed access to his Counsel while in Mile 2 prison. He also replied that the trial judge fled the Gambia as a result of the discovery of not having the requisite qualification and the alleged corruption charges and has since been declared wanted by the Government of the Gambia.

The Plaintiff denied being among those that were granted mass pardon, but was granted pardon on the pressure from both the Nigerian and United States’ Governments.

Furthermore, the Plaintiff asserts that his right to fair trial was violated by the Courts. That even at the Supreme Court, the prosecution informed the Court that they will not file any brief because they believed that the Plaintiff had not committed any offence, but the Court did not allow the appeal. The record of proceedings have up till the time of filing this suit not been released despite the Plaintiffs application.

On the 5th of July 2018, the Defendant filed a rejoinder to the Plaintiff’s reply stating inter alia that the said petition was sent to the Judicial Service Commission and that it was on the strength of the petition from the Gambia Bar Association that an investigation was conducted. The Defendant reiterated its position that it was based on the report of the said investigation that the Plaintiffs appointment was rescinded by the then President.

The Defendant denied that the prosecution counsel opted out of the case on the grounds canvassed by the Plaintiff and further states that the Counsel stopped appearing in Court when his contract with the ministry of Justice expired as state Counsel. The Defendant again denied receiving any letters of protest neither from the American Embassy nor the Nigerian Embassy on the conduct of the case and puts the Plaintiff to the strictest proof.

The Defendant contends that the Plaintiff’s assertions are mere speculations meant to draw the sympathy of the Court as he was accorded all the rights he deserved without hindrance during the course of his trial and that he was on bail throughout his trial.

On the Plaintiffs assertion of being granted a presidential pardon, the Defendant contends that if such pardon exists, then the Plaintiff should not complain of being unable to secure a new job.

That the decision of the Defendant’s counsel in not filing a brief at the Supreme Court was based on technical grounds and not that he was pessimistic in the Appeal.

The Defendant concluded that the Plaintiff is not entitled to the reliefs being sought.

PROCEDURE

The Plaintiff on the 31st May, 2018, filed a motion seeking leave of the Court to lead evidence for the purpose of establishing facts already asserted in his initiating application.

On the 22nd November, 2018, the Court granted the Plaintiff request to lead oral evidence after all pending interim applications have been dealt with in the presence of respective counsel of the parties. He gave oral evidence after which the parties were given opportunity to file written addresses if they so wished to do.

ISSUE FOR DETERMINATION

At the completion of the trial, one cardinal issue stands out for resolution as could be gleaned from both the written and oral procedures as follows:

WHETHER IT CAN BE DEDUCED FROM THE TOTALITY OF FACTS AND EVIDENCE PRESENTED THAT THE ACTS OF THE DEFENDANT CONSTITUTE A VIOLATION OF THE PLAINTIFF’S RIGHTS AS ALLEGED.

The Court shall now proceed to determine the issue as set out.

The stance espoused by the Plaintiff is that the Defendant denied him a fair trial through the unlawful termination of his employment with no regard to the proper procedures. Advancing this position, the Plaintiff posits that his trial by a Judge whose case he was handling prior to his trial, having publicly raised his reservations, falls short of the guarantees of the right to be heard by an impartial and independent tribunal. The Plaintiff further alleged that there was complete failure to comply with the requirements of fair trial during his trial and he has suffered discrimination by the Defendant.

The position of the Defendant is that the powers it exercised relative to the Plaintiff were in line with its Constitution and that the Plaintiff was properly charged on the outcome of the investigation report submitted to the Attorney General’s Chambers by the police, as well as the legal opinions and surrounding facts.

As amply stated in the decision of the European Court of Human Rights [ECHR] in the case of:

O’HALLORAN AND FRANCIS V. THE UNITED KINGDOM [GC], NOS. 15809/02 AND 25624/02, § 53, ECHR 2007-III);

“What constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case”

The right of an accused to be tried before an impartial tribunal, as provided for both in the Universal Declaration of Human Rights and the African Charter on Human and Peoples Rights (hereinafter referred to as UDHR and ACHPR respectively) is not only an integral component of the right to fair trial but also an unqualified right.

ARTICLE 10 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS reads:

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”

ARTICLE 7 (1) OF AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS also

reads:

Every individual shall have the right to have his cause heard. This comprises:

a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

b) the right to be presumed innocent until proved guilty by a competent court or tribunal;

c) the right to defence, including the right to be defended by counsel of his choice;

d) the right to be tried within a reasonable time by an impartial court or tribunal.

The Court’s primary concern under the above mentioned instruments is to evaluate the overall fairness of the criminal proceedings. The contemporary approach to the determination of whether or not a trial has met the requirements of fair trial must be devoid of piecemeal approach but rather every aspect of the trial ought to be meticulously examined.

In the instant case, to enable the Court resolve the sole issue as set out (supra), the evaluation of the overall fairness of the proceedings warrants the determination of the following sub-issues:

Ø Whether or not the Plaintiff’s nationality accounted for his dislike by members of the Gambian Bar which resulted in the alleged discrimination against him;

Ø Whether or not the trial judge’s refusal to recuse himself from the trial of the Plaintiff amounted to a breach of fair trial rules in the circumstance of this case.

Ø Whether or not the trial of the Plaintiff in its entirety followed due process.

The above issues will now be addressed in seriatim.

For the avoidance of doubt, and before the determination of the issues, it is imperative to point out that this court does not constitute itself as an appellate chamber to interfere with the findings of the national Courts. However, once human rights violation are alleged, it invokes its jurisdiction to examine whether or not there has been a violation. The Court will therefore concern itself only in cases of apparent non-compliance with the relevant laws which the member states have ratified, to ascertain whether or not there has been a violation by the member state.

The above caveat has been reiterated in a number of cases by this Court including MUSA LEO KEITA V. MALI (2004-2009) pg. 65, where the court declared that it had no jurisdiction to adjudicate on a judgment delivered by the court of a member state.

Also in HADIJATOU MANI KORAOU V. REPUBLIC OF NIGER (2004-2009) CCJELRpg. 232 para. 60, the court held that it does not have the mandate to examine the laws of member states of the community in abstracto but rather, to ensure the protection of rights of individuals whenever such individuals are victims of the violation of those rights which are recognized as theirs, and the court does so by examining concrete cases brought before it.

The Court shall now proceed to consider the issue:

WHETHER OR NOT THE PLAINTIFF’S NATIONALITY ACCOUNTED FOR HIS DISLIKE BY MEMBERS OF THE GAMBIAN BAR WHICH RESULTED IN THE ALLEGED DISCRIMINATION AGAINST HIM.

The Plaintiff maintained that his nationality prompted dislike and discord by members of the Gambian Bar. The Defendant in debunking his claim argued that the Plaintiff had a good working relationship with the Bar Association since he stepped into office sometime in 2000, till his arrest and trial for abuse of office and other offences.

The Plaintiff reiterated emphatically that most of the members of the Gambian Bar were not happy with his appointment due to his nationality.

It is important that the context in this case relative to this issue be put to its rightful perspective. In doing so, the Court will reproduce verbatim the claims of the Plaintiff in respect of his allegation of discrimination as contained in paragraphs 5 and 6 of his Initiating Application filed at the Registry of the Court on 22nd January, 2018 as follows:

5. The Plaintiff further states that because he is not a Gambian citizen, most of the members of the Gambian Bar were not happy with his appointment.

6. That sometime in 2013 some members of the Gambia Bar Association including the then President Ms. Ubna Farage and the Minister of Justice Ms. Amie Joof went to the then President Alhaji Yahaya Jammeh and made frivolous allegation of corruption against the Plaintiff and without any investigation, the Plaintiff was removed from office.

Comparative information available to the Court gleaned from the pleadings of the parties clearly established that the Plaintiff was appointed by the Defendant as a judge, was assigned a role as the acting Chief Justice at a point in time and was eventually appointed as the Chief Justice. Throughout these stages of the Plaintiff’s engagement with the Defendant, the Defendant was aware of the nationality of the Plaintiff and yet entrusted into his hands the highest office of the third arm of governance in the Defendant state.

The allegations of human rights violation in this suit is against the Defendant and not the Gambian Bar Association as a body. The Court notes that the fact that the decision to remove from office and to prosecute him emanated from the petition by the Gambian Bar Association – does not prove the allegation of discrimination by the Gambian Bar Association. The mere allegation of discrimination without more is itself sufficient to prove an issue of discrimination against the Defendant. What was important was the fact that the Plaintiff’s guilt or innocence was determined by established legal framework in accordance with the evidence presented and that the process leading to the Plaintiff’s indictment and subsequent trial were neither hostile nor in breach of the established guaranteed procedural rights of an accused to such an extent that the fairness of his trial was prejudiced. Indeed, whether the Plaintiff’s removal from office by the then President of the Defendant pursuant to the said petition by the Gambian Bar Association was without investigation or not, is an issue in itself to be interrogated by Court in this trial, and that fact does not impute discrimination on the part of the Gambian Bar Association.

Imputing to the Defendant an alleged hatred by the Gambian Bar Association on the ground of the Plaintiff’s nationality, in the face of comparative information available to the Court including his appointment to the highest judicial functions, is far-fetched an attribution this Court considers unsustainable. In any case, the Plaintiff has not been able to discharged the burden of proof required of him as stated in the case of FEMI FALANA, WAIDI MOUSTAPHA v. THE REPUBLIC OF BENIN & 2 ORS (2012) CCJELR 1., where this Court held that:

“as always, the onus of proof is on a party who asserts a fact and who will fail if that fact fails to attain that standard of proof that will persuade the Court to believe the statement of the claim”.

Discrimination in this context, even if presumable against the Gambian Bar Association, which has not been proven, cannot be attributed to the Defendant herein. The Court, therefore finds that the issue of discrimination based on nationality alleged by the Plaintiff has not been sufficiently proven and same is hereby dismissed.

The Court will now consider the next issue which the Plaintiff has placed much reliance on in establishing that his trial was bereft of the needed fairness as required by the various instruments underpinning his case:

WHETHER OR NOT THE TRIAL JUDGE’S REFUSAL TO RECUSE HIMSELF FROM THE TRIAL OF THE PLAINTIFF AMOUNTED TO A BREACH OF FAIR TRIAL RULES IN THE CIRCUMSTANCES OF THIS CASE.

It is trite that a charge or allegation of bias against a sitting judge must be satisfactorily proved on the balance of probabilities by the person alleging same and any flimsiest pretext should fail else accused persons would be choosing their own judges whenever a criminal case is instituted against them.

The evidence before the Court brings to light the Plaintiff’s aspersions to the effect that the trial Judge before whom his matter was heard, had a likelihood of bias against him. The relevant portions of the Plaintiff’s pleadings on the issue are as contained in paragraphs 25 and 26 of the Plaintiff’s Initiating Application cited above reads as follows:

25.     The Plaintiff states that Justice Mabel Agyeman who replaced him and Ms Amie Joof who was the Minister of Justice at the time of the plaintiff’s supposed trial were aware that the trial judge, Justice Emmanuel Nkea was having some pending corruption allegation matter before the plaintiff as the Chief Justice and everybody knows the zero tolerance policy of the plaintiff, still Justice Mabel Agyeman assigned the trial judge to try the plaintiff which was a gross violation of the plaintiff’s human right.

26.    The Plaintiff further states that his counsel filed a motion for the trail judge to recuse himself due to the above reason and the prosecution, knowing it was a fact did not file any affidavit in opposition to dispute the fact, still the trial judge refused to recuse himself which is a clear gross violation of the plaintiff human rights. The plaintiff will rely on the said motion and ruling at the trial of this case”.

In effect, the gravamen of the Plaintiff’s allegation is that while he was in office, there was a pending case before him on corruption to which the trial Judge was involved and that the Chief Justice who replaced him assigned his own trial to the said judge. Another perplexing concern is that the Plaintiff’s case had been assigned to one Legenju Vitalis, a state Counsel who is a nephew to the trial Judge and at that time, was living in the same house with the trial judge.

In response to this assertion, the Defendant denied the existence of any pending case and maintained that the prosecution was led by a special litigation counsel, one Mr. Agiah and assisted by a state counsel Legenju Vitalis, who for all intents and purposes was a state counsel at the Attorney General’s Chamber.

One fundamental point which needs to be clarified by the Court is whether or not the trial judge was indeed a subject of corruption proceedings before the Plaintiff when the former was assigned as the trial judge over the Plaintiff’s trial. The Plaintiff who bears the burden of proof, in his pleading averred as reproduced above. When same was denied by the Defendant, the Plaintiff in his oral evidence before the Court on the 22nd November, 2018, at page seven (7) of the verbatim, stated as follows:

“Yes, the judge, Justice Emmanuel Nkea was undergoing a corruption proceedings before me. And when the matter came up in the Gambia, my lawyers filed a motion that the judge recuse himself based on two (2) major grounds. That the judge was undergoing a corruption proceeding under me, and that the nephew of the judge, Legunju was the one prosecuting. And because I was not in the (…) at the time of my trial; I finished work on Friday, and the next day Saturday was when I received a letter from the Security Agents that I have been relieved of my duties. So when the case commenced, I was not having access to all the files”.

The Defendant’s counsel who was given opportunity to cross examine the Plaintiff did not dispute this piece of evidence of the Plaintiff.

Again, the Plaintiff attached to his initiating application the said motion filed against the trial judge to recuse himself and the ruling by the Court as ANNEXURE “1” & “2”. At page four (4) of the ruling by the trial judge (Annexure “2”), the judge commenting on the allegation that he was undergoing corruption proceeding before the Plaintiff which has generated hostility and animosity stated as follows:

“It must be noted that the allegation of hostility and animosity are issues which allegedly occurred long before the 1st accused/applicant was charged to court, talk less of being made to appear before me. And suffice I tot state that the 1st accused/applicant has appeared before me three times at the pre-trial phase of this matter.”

From the above pieces of evidence adduced by the Plaintiff, and contrary to the denial by the defendant, the Court finds as a fact duly proven, that the trial judge was undergoing corruption proceedings before the Plaintiff when he was the Chief Justice. The allegation made that one Vitalis Legunju was also a nephew of the trial judge, the Court finds relevant to the issue of controversy.

In determining whether there is a legitimate reason to fear that the Judge lacked independence or impartiality, it is important to ascertain the standpoint of the accused and whether his doubts can be held to be objectively justified.

In GABRIEL INYANG & ANOR V. FRN (2018), the court stated that:

“For the applicants to succeed in an application for a violation of their right to fair trial, (…) it must be shown that the trial was in breach of international standard”.

The Plaintiff maintained that he objected to the determination of his fate by the trial Judge vide an application which he annexed as evidence before the Court. The trial Judge however failed to recuse himself and stated that the Plaintiff has not disclosed any reasonable ground to warrant a recusal.

The Defendant on the other hand argued that the Plaintiff did not disclose any fact that will warrant the trial Judge to be seen to have breached any Section of the Judges Supplementary Code of Conduct Act Cap 7:09 of the laws of The Gambia particularly Section 5 which basically provides the duty of a judge to be impartial and fair in the exercise of his judicial duties by according every person a right to be heard. The Defendant concluded that the allegations made by the Plaintiff are mere speculations.

The right to be heard guaranteed under Article 7 of the African Charter provides as follows:

“Every individual shall have the right to have his cause heard. This comprises:

a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

b) The right to be presumed innocent until proved guilty by a competent court or tribunal;

c) The right to defence, including the right to be defended by counsel of his choice;

d )The right to be tried within a reasonable time by an impartial court or tribunal ”.

In AMOUZOU HENRI & ORS V. REPUBLIC OF COTE D’IVOIRE (2009) CCJELR pg. 297 para 57-58, the Court stressed that the right to fair hearing is guaranteed by Articles 10 of the UDHR, Article 7 of the ACHPR, and Article 14 of the ICCPR (Cited above). That the UDHR and the ACHPR are legal instruments that all ECOWAS Member States, including the Defendant are signatories. At the community level, their eminent importance has been underlined, notably by the affirmation from member states which vowed to expressly respect them.

It is imperative to point out the provisions of Section 10 (4) of the Judges Supplementary Code Act Cap 7:09 of The Gambia which provides:

“a judge must disqualify himself or herself from sitting in a case where there is actual conflict of interest or where the circumstances are such that a reasonable-fair minded and informed person would reasonably apprehend a perceived conflict”

In ANNEXTURE “1”, the Plaintiff inter-alia expressed his fears observing the occurrences especially the attitude and utterances of the Judge in the matter, which extended to the Plaintiff’s Counsel and made him uncomfortable to which he threatened to withdraw from his case. The Plaintiff also reiterated that the trial Judge had served under him both as acting chief justice and chief justice and on the two occasions, the Plaintiff had issued instructions to him to which the Judge was hostile and questioned such instructions. The Plaintiff further made mention of the petition against the trial Judge to which the Plaintiff expressed certain views not favorable to the trial Judge.

In the said affidavit, the Plaintiff stated that he raised and argued a preliminary objection against the state to which the Judge overruled and granted the application without hearing on the merit. Furthermore, the Plaintiff stated that at times during the trial, the Judge tried to reshape the prosecution’s questions for witnesses to his detriment especially when the case was handled by the Judge’s nephew who to the best of the Plaintiff’s knowledge lives with him.

An allegation of bias in any adjudication process is a matter that courts take very seriously. The assertions made on oath must be viewed from an objective and reasonable standpoint. It is often impossible to determine with any measure of precision the state of mind of an adjudicator who has rendered a verdict. Accordingly, the courts take the position that an appearance of impartiality is in itself an essential component of procedural fairness.

The test applicable to determine whether a judicial officer is disqualified from hearing a case by reason of a reasonable apprehension of bias was enunciated in PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS V SOUTH AFRICAN RUGBY FOOTBALL UNION AND OTHERS. 1 [1999] ZACC 9; 1999 (4) SA 147 (CC) para 48. In that case the Constitutional Court said:

'It follows from the foregoing that the correct approach to this application for the recusal of members of this court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case that is a mind open to persuasion by the evidence and the submissions of counsel.(…). It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

The European Court of Human Rights in DAVIDSON SAVINS V. LATVIA (2016) ECHR, reiterated that impartiality, within the meaning of Article 6 (1) of the Convention, (which is in pari materia with the provisions in ACHPR) normally denotes the absence of prejudice or bias. There are two tests for assessing whether a tribunal is impartial: the first consists in seeking to determine a particular judge’s personal conviction or interest in a given case (subjective test); and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (objective test). In the first test, the impartiality of a judge must be presumed until there is proof to the contrary. The second test determines whether there are ascertainable facts which may raise doubts as to the impartiality of a body sitting as a bench. In this respect, even appearances may be of some importance, but what is decisive is whether the fear can be held to be objectively justified. See also PANYIK V. HUNGARY, (2011) APP NO 12748/06 ECHR Strasbourg. Again in MORICE v. FRANCE (2015) APP NO. 29369/10, ECHR, it was stated that an Applicant who had argued nevertheless that the very presence of a judge on the bench presiding over his case had created a situation which justified his fears of lack of impartiality, the court thus examined the case from the perspective of the objective impartiality test, addressing the question whether the Applicant’s doubts could be regarded as objectively justified in the circumstances. The Court held in the affirmative that due to the previous judicial proceedings between the judge and the Applicant, the Applicant’s fears were objectively justified. Thus any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw.

The Court is convinced that the grounds disclosed by the Plaintiff were sufficient to ground his fears of bias and impartiality and the judge ought to have withdrawn from the case. The mere stating that the Plaintiff has not disclosed reasonable grounds does not portray objectivity on the part of the Judge.

The Court is of the considered view that the powers exercised by the trial judge were done arbitrarily eschewing improper influences. The Court therefore finds that there were no sufficient guarantees provided to exclude legitimate doubt as to the trial Judge’s impartiality towards the Plaintiff. Consequently, it is the finding of the Court that the act of the Defendant in maintaining the said judge to try the Applicant’s case, violates the provisions of Article 7 of the African Charter on Human and Peoples Rights.

WHETHER OR NOT THE TRIAL OF THE PLAINTIFF IN ITS ENTIRETY FOLLOWED DUE PROCESS IN LAW.

The Plaintiff’s argument in support of this issue was categorized into three; that his appointment was terminated without regards to due process and he was convicted without proper investigation; that he was denied access to the records of proceedings to enable him pursue his appeal; and that there was no access to his counsel while in Mile 2 prison.

The Defendant submitted that the trial of the Plaintiff started with an investigation by the investigating body which formed the basis of the Plaintiff’s arrest and trial and that the trial was in accordance with due process.

As regards the pre-trial stage (inquiry, investigation), the Court considers criminal proceedings as a whole, including the pre-trial stage of the proceedings since the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with the necessary pre-trial procedural rights of the accused.

In the case of VERA FERNÁNDEZ-HUIDOBRO V. SPAIN, APP. NO. 108114, the ECHR reiterated this point when it delivered itself as follows:

“Although investigating officers do not determine a “criminal charge”, the steps taken by them have a direct influence on the conduct and fairness of the subsequent proceedings, including the actual trial. Accordingly, Article 6 (1) may be held to be applicable to the investigation procedure conducted by an investigating officer, although some of the procedural safeguards envisaged by Article 6 (1) might not apply”.

Due process of law is interpreted here as rules that are administered through courts of justice or tribunals in accordance with established and sanctioned legal principles and procedures; with safeguards for the protection of individual rights.

It has not been disputed that the Plaintiff was at some point the acting Chief Justice and Chief Justice of The Gambia. The defendant has a statutory legal framework dealing with persons who occupy such judicial positions and the said legal framework has its own prescribed set of rules and procedures as well as sanctions. Thus, it can be rightly said that where there is an allegation against a Judge of a superior Court, a procedure is in place for the investigation, discipline and appropriate sanctions where the circumstance of the case so demand.

To this end, Section 141 (2) (c) of the 1997 Constitution of The Gambia as amended provides that:

“Subject to the provisions of this section, a Judge of a Superior Court may have his or her appointment terminated by the President in consultation with the Judicial Service Commission”.

Section 141 (4) of the said Constitution provides that:

“The Chief Justice, a Justice of the Supreme Court, the Court of Appeal and the High court and members of the Special Criminal Court may only be removed from office for inability to perform the functions of his or her judicial office, whether arising from infirmity of body or mind, or for misconduct”.

By virtue of Section 141 (5) of the Gambian Constitution, a Judge may be removed from his or her office if notice in writing is given to the Speaker, signed by not less than one-half of all the voting members of the National Assembly, of a motion that the judge is unable to exercise the functions of his or her office on any of the grounds stated in subsection (4) and proposing that the matter should be investigated under this section.

Even though the Defendant contended that there was investigation into the allegations against the Plaintiff, this Court observes that the Defendant did not annex any report in proof that there was an investigation stricto sensu. The only document relevant to this issue from the Defendant’s pleadings is the Charge Sheet from the national Courts. In the said Charge Sheet, the Court observes that charges contained in counts 6, 7, 8 & 9 on false information are those connected with the investigation report annexed to the Plaintiff’s application as ANNEXURE “5”.

There is neither a Caution Statement nor investigation report on the allegations of abuse of office, criminal fraud and breach of trust, conspiracy to defeat justice, offences relating to judicial proceedings and false assumption of authority as contained in the said Charge Sheet particularly Counts 1, 2, 3, 4 and 5. There is also no evidence of the Plaintiff being subjected to the Judicial Service Commission or a judicial tribunal as the case may be in his capacity as a former Chief Justice.

Lord Phillips in a hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43 stated at paragraph 1 stated that:

“The independence of the judiciary requires that a judge should never be removed without good cause and that the question of removal be determined by an appropriate independent and impartial tribunal. The principle applies with particular force where the judge in question is a Chief Justice.”

The Defendant maintained that the petition was addressed to the Judicial Service Commission alleging serious malpractices by the Plaintiff based on certain revelations contained in an audio recording published by the press. That the Plaintiff’s removal was effected after investigations and due deliberations in consultation with the Judicial Service Commission.

The Plaintiff on the other hand argued that the petition from the Gambian Bar dated 2nd July, 2013, against him was addressed to the Attorney General and Minister of Justice, and not to the Judicial Service Commission. The Plaintiff further contends that the Attorney General is not a member of the Judicial Service Commission and placed reliance on the provisions of sections 145, 146, 147 and 148 of the 1997 Gambian Constitution as amended.

In buttressing his position, the Plaintiff maintained that as the Chief Justice at that material time, he was the chairman of the Judicial Service Commission and there was no deliberation or consultation with the President before his removal, neither was there any investigation in that regard. More to this is the fact that he was in the office performing his duties until the close of work on Friday, 19th July 2013, and the letter terminating his employment which emanated from the Attorney General and Minister of Justice, on the directives of Security operatives was received on Saturday, the 20th of July, 2013.

Pursuant to Section 141 (7) of the Defendants Constitution, the National Assembly shall by a resolution appoint a tribunal consisting of three persons, at least one of whom shall hold or shall have held high judicial office, who shall be the chairman of the tribunal, who shall investigate the matter and shall report to the National Assembly through the Speaker whether or not it finds the allegations specified in the motion to have been substantiated.

Where the Tribunal finds any such allegation substantiated and reports to the National Assembly, the National Assembly shall consider the report at the first convenient sitting and if, on a motion supported by the votes of not less than two- thirds of all the members, the National Assembly resolves that the judge be removed from office, the judge shall immediately cease to hold office.

In RE: JUDGE PAMELA J. WHITE Court of Appeals of Maryland in Misc. No. 5 February 22, 2017, it was stated that an accused Judge is entitled to these elements of procedural due process: notice, an opportunity to respond, a fair hearing – regardless of the outcome – i.e., whether the Commission ultimately decides to dismiss the charges, reprimand the judge, or recommend that we censure, discipline, or remove the judge. The Court further stated that an accused judge is entitled to a fair proceeding, but not necessarily a perfect proceeding.

From the facts and evidence adduced by both parties, there is nothing to show or prove that the relevant provisions as cited above were complied with by the Defendant relative to the Plaintiff. The Plaintiff states that there was no investigation, neither was there any consultation with the Chairman of Council with regards to his removal. The Defendant on the other hand merely stated that due process was complied with without adducing evidence in proof. No copies of the investigation report, and other relevant documents in compliance with the provisions of section 141 of the constitution above.

On the issue of the investigation, the Defendant has not sufficiently discharged the requirement of proof upon it as stated in the case of FEMI FALANA, WAIDI MOUSTAPHA v. THE REPUBLIC OF BENIN & 2 ORS (cited supra).

In ASSIMA KOKOU INNOCENT & ORS v. REPUBLIC OF TOGO (2013)

CCJELR 187 pg. 201 & 202 para 59, this Court insisted that “before it concludes on the issue of occurrence of human rights violation, the concrete proof of the fact upon which the Applicants’ based their claims must be established with high degree of certainty, or at least there must be a high possibility of the claims appearing to be true upon scrutiny. In this regard, mere allegations do not suffice to elicit the conviction of the Court”.

The Court recalls its earlier affirmation that it considers the pre-trial stage (investigation) as an essential component of a criminal proceedings since the quality or otherwise of investigation is likely to affect the overall fairness of the trial. To this end, the Court holds that the Plaintiff was removed from office as Chief Justice of The Gambia and subsequently tried and convicted without proper investigation which compromised the due process required in the case of the Plaintiff.

In the decided case of CAN V. AUSTRIA, NO. 9300/81, COMMISSION’S REPORT OF 12 JULY 1984, § 48, SERIES A NO. 96), the ECHR had this to say;

“Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings “

This Court is not unaware of the fact that the Plaintiff has equally raised other aspects of his trial that compromised the required due process and fairness provided for under the international instruments he has cited in support of his case. Among others, the Plaintiff has raised issues of the impartiality and independence of the judges who presided over his proceedings both at the trial Court and the Appellate courts, improper evaluation of legal points raised in the proceedings, refusal and/or failure to make the records of proceedings accessible to him and finally his inability to consult freely his lawyer while at the Mile 2 Prisons.

Indeed, the defendant merely denied the plaintiff’s assertion that he applied for the trial records to enable him appeal, but the defendant/its agents made it extremely difficult for him to obtain them. The issue of not permitting the plaintiff’s lawyers to visit him in prison was also rebuffed by the defendants. However, this court deems them very serious allegations against the due process of trial of accused persons. Though the burden of proof lies on the plaintiff to lead further evidence in proof of these denied pleadings, the court also resorts to the credibility of the plaintiff’s evidence on the other issues as well as the mere incredible denials of the allegations by the defendant and comes to the conclusion that it believes the plaintiff’s evidence in its entirety, and therefore concludes that the plaintiff has established credibly that the defendant failed to allow his access to his lawyers whilst in prison, and also that the defendant frustrated the appeal process.

There is nothing before the Court to suggest that the trial Court acted under the recommendation of the National Assembly, the Tribunal or the Judicial Service Commission as the case may be. There is also no evidence of a fair trial or proceeding before a duly constituted tribunal in line with Section 141 of the Defendant’s Constitution. In light of the above, whereas the 1997 Constitution of Gambia provides the methods of initiating proceedings for the removal of a Supreme Court Judge, and whereas the provision requires the tribunal to conduct independent investigations before making a conclusion, and whereas the Defendant has not complied with this requirements, the Court in considering the texts creating the Judicature and in line with the principles of fair trial, holds that the acts of the Defendant was unconstitutional, biased, lacking in independence, amounts to non-compliance with due process and in breach of natural justice and thereby constitute a gross violation of the Applicant’s right to fair trial.

​COMPENSATION

The Plaintiff per his reliefs, prayed this Honourable Court to order the Defendant to pay to him the sum of Twenty Million US Dollars (US$20,000.000) plus six percent (6%) interest per annum for violation of his human rights. He further prayed for payment by the Defendant of successful Attorney’s fees.

In the case of CHIEF EBRIMAH MANNEH v. THE REPUBLIC OF THE GAMBIA (2004-2009) CCJELR 181 pg. 194 para. 32, this Court held that:

“Having concluded............ that the Plaintiff’s right to his personal liberty has been abused, the Plaintiff is entitled to some damages for the wrongs that he has suffered. The amount of damages, however, is dependent on the facts of this application and the relevant rules governing the award of damages”

The Court in the above case reviewed cases of the European Court of Human Rights which are of persuasive effect and can help in determining the basis and quantum of damages to be awarded. In AHMED SELMOUNI v. STATE OF FRANCE (2005) CHR 237 and MIOSLAV CENBAUER v. REPUBLIC OF CROATIA (2005) CHR 429 the ECHR awarded damages to the successful Plaintiffs whose human rights were violated. However, the Court, in awarding the damages; was emphatic that in awarding general damages, the circumstances of each case must be thoroughly examined since the object of such an award is only to ensure “just satisfaction” and no more. In this application, the Plaintiff has not demonstrated any special pecuniary damages he suffered as a result of the violation of his rights. The closest he came to in that direction was when he alleged that he has not been able to secure employment as a result of his conviction by the Defendant. He was granted a remission of sentence by the Defendant after serving part of his sentence.

In consonance with the object of human rights instruments, in cases where the abuse has already taken place, restoration of the rights in question is paramount. In this case, the Court is mindful of the fact the claims of the Plaintiff’s inability to secure employment will be substantially ironed out by the findings of this Court in this judgement. The Court considers that as enough “just satisfaction” to the Plaintiff. The time spent by the plaintiff in prison when he was wrongfully tried and sentenced [though he has been cleared of any stigma and cannot now be described as an ex-convict] is the major concern of this court for which he must be compensated. The court will exercise its discretion to award him nominal damages, having regard to the circumstances of this case. The plaintiff is awarded compensatory damages of One Hundred and Fifty Thousand United Stated Dollars [US$150 000.00] or its equivalent in Dalasi, The Gambian currency.

The prayer for payment of successful Attorney’s fees will equally receive a favorable consideration by the Court since the Plaintiff has been unemployed after his removal from office and may be financially constrained in footing the bills of his attorney and the costs of this litigation. Under this head, the plaintiff is also awarded the sum of Fifty Thousand United States Dollars [US$50 000.00] or its equivalent in Dalasi

DECISION OF THE COURT

1.  The Court has found that the Plaintiff’s trial by the trial judge who was undergoing some corruption allegation proceedings before him was a violation of his human rights to fair trial.

2.  Whereas the 1997 Constitution of Gambia provides the methods of initiating proceedings for the removal of a Supreme Court Judge, and whereas the provision requires the tribunal to conduct independent investigations before making a conclusion, and whereas the Defendant has not complied with this requirements, the Court in considering the texts creating the Gambian Superior Court of Judicature and in line with the principles of fair trial enshrined in International Instruments particularly UDHR and ACHPR, has found that the acts of the Defendant relative to the Plaintiff’s removal from office, trial and conviction were biased, lacking in independence, amounts to non-compliance with due process and in breach of natural justice and thereby constitute a gross violation of the Plaintiff’s right to fair trial.

3.  The Court awards the plaintiff nominal damages for violation of his rights to fair hearing and for his incarceration as prayed for considering the fact that the findings of the court are restorative enough to give just satisfaction to the Plaintiff and clear any impediment in his efforts to secure employment.

4.  The Court finds that there is justification for payment of Plaintiff’s Attorney’s fees as a successful Attorney since the Plaintiff has not been working after his removal from office and may be constrained in meeting the financial obligations of his attorney.

COSTS

The Plaintiff is adjudged to be entitled to costs of this application to be borne by the Defendant, as will be assessed, under and by virtue of Article 66 of the Court’s Rules of Procedure.

REASONS

For the reasons canvassed above, the Community Court of Justice, sitting in public after hearing the parties, and their submissions duly considered in the light of Article 7 and Article 10 of ACHPR and UDHR respectively, and also the Supplementary Protocol of the Court and the Court’s Rules of Procedure, declares this application to be admissible in human rights and the Court enters judgment for the Plaintiff against the Defendant, who is liable for the violation of the plaintiff’s rights.

ORDERS

Consequently, the Court orders:

i.          That the Republic of The Gambia pays damages to the Plaintiff as well as his Attorney’s legal fees as assessed by this court.

ii.         That the Defendant pays the costs of this action to be assessed.

 

THIS DECISION IS MADE, ADJUDGED AND PRONOUNCED PUBLICLY BY THIS COURT, COMMUNITY COURT OF JUSTICE, ECOWAS; SITTING AT ABUJA, NIGERIA ON THE DAY 27TH FEBRUARY, 2019.

 

HON. JUSTICE EDWARD AMOAKO ASANTE

- PRESIDING

……………………….

HON. JUSTICE GBERI-BE QUATTARA

- MEMBER

……………………….

HON. JUSTICE KEIKURA BANGURA

- MEMBER

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MR. TONY ANENE-MAIDOH - CHIEF REGISTRAR                        ……………………….