Bangra JA

Author
Judgment date
Case number
ECW/CCJ/APP/ 32 of 2016
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Bangra JA
Moreira-Costa JA
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Author
Judgment date
Case number
EWC/CCJ/APP/ 40 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Bangra JA
Moreira-Costa JA
Search summary

IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) HOLDEN AT ABUJA, IN NIGERIA

ON 3RD, DAY OF FEBRUARY, 2020

SUIT No: EWC/CCJ/APP/40/I7

JUDGMENT NO: ECW/CCJ/JUD/02/20

 

BETWEEN

PROF. (ENGR) JOSEPH ADELEGAN                              - APPLICANT

AND

ECOWAS BANK FOR INVESTMENT AND DEV.            - RESPONDENT

 

COMPOSTION OF THE COURT

Hon. Justice Gberi-Be Ouattara                                     - Presiding

Hon. Justice Keikura Bangura                                        - Member

Hon. Justice Januaria T. Silva Moreira COSTA                - Member

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


JUDGMENT


 

Parties

The Applicant is Prof. (Engr.) Joseph Adelegan a former employee of the Respondent. The Respondent is ECOWAS Bank for Investment and Development is an institution created by the new Article 21 of the Revised Treaty of ECOWAS as amended by the Supplementary Act No. A/SA.9/01/07 of 19 January, 2007.

Subject Matter of the Proceedings

The Applicant’s claim is for the alleged non-compliance by the Respondent with provisions of its Staff Rules and Regulations in the recruitment exercise conducted to fill the vacant position of Director, Public Sector Operations of the Defendant. The Applicant claimed to have applied for the position but was wrongfully terminated by the Respondent when he protested that the said recruitment exercise was riddled with anomalies.

The Applicant’s Claim

The Applicant submits that he is a professor of Civil and Structural Engineering, in the employment of the Respondent as the Head, Environment and Sustainable Development Unit. He was appointed by way of letter dated 8th October, 2012 and was subsequently confirmed by a letter dated 1st April, 2015 as a permanent staff. That the conferment of the permanent staff status on him was on the basis of his yearly performance, professional knowledge, self-management, communication skills, creativity and innovation, interpersonal relations, team spirit and orientation on corporate culture among others. That the Applicant alleged that confirmation as permanent staff coupled with the comment of the Respondent (President) encouraging him to “continue in the path” affirms the fact that the Respondent was extremely satisfied with his performance and conduct.

The Applicant avers that while in the employment of the Respondent, he appraised and supervised projects as he was the only environmental and social safeguard expert in the employment of the Respondent in both public and private sector operations without recourse to any consultant.

That by reason of the Applicant’s academic and professional qualification and experience, he applied as an internal candidate for the vacant position of the Director of Public Sector Operation pursuant to an advertisement dated 12th May 2015 made by the Respondent. The Applicant states that to his greatest consternation, he was not shortlisted for the position even though he was allegedly over qualified for the said position, despite the fact that the Respondent’s Staff Rules and Regulations provides that priority should be given to internal candidates among applicants with equal qualifications and skills. That upon the realization he had not been shortlisted for the position, he wrote to the Respondent via a letter dated 14th July, 2016, 15th July, 2016 and 29th August, 2016; and a memo dated 4th July, 2016 respectively in protest. The Applicant claims that as a result of the said letters, the Respondent subsequently invited him for the psychometric test and thereafter he was invited for a written test and oral interview. That shortly after the recruitment exercise was conducted, the Applicant was informed by the Respondent at a panel meeting that he was not successful for the position. That this came as a shock to him considering his academic and professional qualifications as well as his experience, which far exceeds the requirement for the position.

The Applicant claims to have investigated the recruitment exercise conducted by the Respondent and discovered the following irregularities and flaws:

I.     That the Togolese Human Resource firm KAPI Consult initially hired to conduct the recruitment was abruptly disengaged and a supposed South African firm by the name MCA Training International was hired to replace KAPI Consult.

II.     That the MCA Training International was not existing as at the period of time it was hired by the Respondent to conduct the recruitment exercise.

III.     That the said MCA Training International had been struck out of the list of registered companies in South African since 16th July, 2010.

IV.     That to due diligence, conducted on MCA Training International, showed that some of its key personnel only have secondary school level qualification.

V.     That the supposed head office address of MCA Training International located at No. 7 Uizitcht, Sturke Road, Welgemoed, 7530 Cape Town is a private residence.

VI.     That the management of the Respondent during its 53rd meeting of the Board of Directors, requested one of its agenda under the recruitment exercise for a waiver of the age requirement of a 52 years old candidate for the position of Director of Public Sector Operation despite having stated in its advertisement for the position, that all external candidates should not exceed 45 years of age.

The Applicant alleged that by a letter and memoranda dated 14th April, 2017, 4th May, 2017 and 23rd May, 2017 respectively, he wrote to the Board of Directors of the Respondent protesting of the fraudulent acts and irregularities that marred the recruitment exercise. That the Respondent in response expressed its satisfaction with the way and manner the said recruitment exercise was conducted. The Applicant avers that in a bid to seek amicable redress in respect of the said recruitment exercise and injustice meted on him, he requested the Respondent to invoke a mediation mechanism for the settlement in accordance with Article 76 and 77 of its staff rules and regulations. That rather than addressing the Applicant’s complaints, the Respondent summarily and capriciously terminated his appointment without due process and without affording him any opportunity to defend himself.

That the said termination of the Applicant’s appointment is an oppressive retaliation from the management of the Respondent against him for exposing the fraudulent activities during the recruitment exercise.

That the Respondent having received the letters from his solicitors, is yet to redress his complaint and reinstate him.

The Applicant therefore claims the following reliefs:

1.  A DECLARATION that the Respondent acted arbitrarily, capriciously and in breach of the Applicant’s right to fair hearing when the Respondent terminated the Applicant’s appointment with the Respondent in May, 2017 without having given the Applicant notice of allegations of any wrong doing and the opportunity of defending himself before the Applicant’s appointment was terminated.

2.  AN ORDER of the Honorable Court setting aside the decision of the Respondent terminating the appointment of the Applicant as Head, Environment and Sustainable Development Unit of the Respondent.

3.  AN ORDER of the Honorable Court reinstating the Applicant to his position as Head, Environment and Sustainable Development Unit of the Respondent.

4.  AN ORDER of the Honorable Court directing the Respondent to pay the Applicant’s salaries, entitlements and benefits due and payable to the Applicant from May, 2017 till the day judgment is delivered in the suit and Twenty-five (25%) percent interest per annum of total sum from May, 2017 till date of the judgment.

PARTICULARS:

YEARLY EMUNERATION AND ONE TIME EMPLOYMENT BENEFITS OF THE APPLICANT

(1)      YEARLY REMUNERATION (EMPLOYMENT SALARY, ALLOWANCES AND BENEFITS)

a.  12 month(s) salaries (including 13th and 14th months’ salary) = USD 114,184

b.  Educational grant for four (4) children (USD 5000 × 4) = USD 20,000

c.  Home leave travel cost (every two years) for staff, spouse and four children (studying abroad) yearly conversion = USD 6,500 per year

d.  Paid leave (30 days year) converted to cash = USD 12,234

e.  Medical expenses for applicant, spouse and four children to be paid by the Bank up till the day judgment is delivered.

f.   Employee’s yearly contribution to the pension scheme to be paid by the Respondent up till the day judgment is delivered.

g.  Salary increment in Step every two years (yearly conversion) and average compounding = USD 5,341(currently in P5 Step 2 and due for P5 Step 3 on January 2, 2018)

TOTAL REMUNERATION PER YEAR = USD 158,259

(2)  ONE TIME EMPLOYMENT BENEFITS

UNPAID MEDICAL EXPENSES FOR ENGR (PROF) JOSEPH ADELEGAN, SPOUSE AND CHILDREN SUBMITTED TO THE BANK 1, 2017.

Outstanding and unpaid medical expenses = USD 12,054 (these submitted medical expenses was acknowledged by the Bank in their letter dated 8th June, 2017 and Ref. 256/2017/BIDC- EBID/CDRH/AS)

OUTSTANDING LEAVE DAYS FOR 2017 outstanding leave (28 days) for 2017 converted to cash = USD 11,420

TOTAL REMUNERATION PER YEAR= USD 158,259 TOTAL ONE TIME EMPLOYMENT BENFITS = USD 29,474

SUM  TOTAL  SALARIES,  ENTITLEMENTS  AND  BENEFITS USD 187,733.

5.  A DECLARATION that the Respondent’s decision not to pick or select the Applicant as the successful candidate in the recruitment exercise conducted or caused to be conducted by the Respondent in year 2016 for the position of Director, Public Sector Operations of the Defendant is oppressive, unfair and arbitrary having regard to the relevant rules and regulations of the Respondent governing the said recruitment/selection exercise.

6.  In the alternative to relief 5 above, AN ORDER of the Honorable Court setting aside the recruitment exercise conducted or caused to be conducted by the Respondent in year 2016 for the position of Director, Public Sector Operations of the Defendant on the ground that the said recruitment exercise was flawed by fundamental irregularities and fraud.

7.  The sum of One Hundred Thousand Dollars ($100,000) as the cost of this lawsuit.

8.  The sum of Ten Million Dollars ($10,000,000.00) as damages for the wrongful termination of the Plaintiff’s appointment by the Defendant.

9.  10% interest per annum of the total judgment sum until the said sum is liquidated.

AND FOR SUCH FURTHER OR OTHER ORDERS as this Honorable Court may deem fit to make in the circumstances.

The Respondent’s defense

The Respondent denies the Applicant’s narration of facts and states that the Applicant was an early candidate of EBID disciplinary committee on account of gross misconduct. That as a probationary employee he breached his duty of fidelity and confidentiality by speaking directly to a third party in unflattering terms and making derisive and negative comments concerning a decision taken by management of EBID.

The Respondent contends that due to the Applicant’s misconduct, the Respondent queried the Applicant and subsequently meted out disciplinary measures against him by extending his confirmation as permanent staff by a period of one year. The Respondent states that no fraud, irregularities and or flaws were responsible for the non-recruitment of the Applicant for the position of Director, Public Sector Operations but that it made considerable effort to make sure that the Applicant was shortlisted by KAPI Consult after he had not being initially shortlisted by KAPI.

The Respondent alleges that the shortlisting exercise conducted was not on basis of the Applicant’s numerous protest letters but on EBIDs principle of giving priority to internal candidates which was extended to all internal candidates for various positions. Respondent further averred that KAPI Consult and MCA were involved in the recruitment exercise and the conduct of the psychometric online assessment respectively and that they discharged their duties satisfactorily. That their recruitment was also in accordance with due process.

The Respondent states that the Applicant was not the only internal candidate who was unsuccessful in the exercise and that in fact all the internal candidates were unsuccessful. That when the Applicant got a glimpse that he was unsuccessful for the position, his started to consistently complain and display acts of indiscipline.

The Respondent avers that the Applicant’s appointment was terminated on grounds of his blatant indiscipline and insubordination which was incompatible with its standards, values and culture of any corporate environment such as the Respondent’s Bank. That the said termination was as a result of several acts of misconduct deserving disciplinary action which resulted in the lawful termination of the Applicant’s appointment in accordance with the Rules and Regulations governing his employment.

The Respondents list the acts of misconduct as follows:

i)        The disgraceful encounter with AMBA Immobilizer.

ii)       The Hillacondji Boarder violence in 2014 which resulted in the Respondent’s Bank being involved by mobilizing resources to intervene and save the Applicant and his family from a violent incident involving the Applicant.

iii)      A mission to Cote d’Ivoire where the Applicant proceeded to embark on leave without notice knowing how important his duty was to the Ivorian authorities.

iv)      The Applicant’s blatant indiscipline towards the management of the Respondent’s Bank which culminated in his appointment being terminated.

In view of the Respondent’s defense, it submitted that the Applicant’s action lacks merit and that he was rightfully terminated in accordance with the Rules and Regulations of the bank and therefore not entitled to the reliefs sought.

The Respondent therefore are seeking the following:

a.  An order dismissing the Applicant’s application with substantial costs.

b.  An order compelling the Applicant to return the Respondent all properties including laptop/computer unlawfully detained by the Applicant since the lawful termination of his appointment.

ISSUES FOR DETERMINATION

1.  Whether the Court has the competence to hear and determine the application.

2.  Whether the application is admissible.

3.  Whether the Applicant was unfairly dismissed by the Respondent.

ISSUE 1: Whether the Court has competence to hear and determine the application.

Competence is a jurisdictional issue that is settled by law. Generally, the Court by itself cannot assume competence to exercise jurisdiction on any matter except by means of statutory provisions conferring on it the competence to exercise jurisdiction on any issue that comes before it.

The Court is aware that amongst the several grievances contained in the application of the Applicant, there is an allegation of violation of right to fair hearing by the Respondent, failure by the Respondent to comply with the Provisions of the Staff Rules and Regulations in the recruitment exercise conducted to fill the vacant position of Director , Public Sector Operation of the Respondent’s Bank and the unfair dismissal of the Applicant without due process and in blatant contravention of the relevant provisions dealing with discipline and dismissal. The Applicant alleged that by letter and a memoranda dated 14th April 2017, 4th May 2017 and 23rd May 2017, he wrote to the Board of Directors of the Respondent protesting of the fraudulent act that marred the recruitment exercises. That the Respondent in response expressed its satisfaction with the way and manner the said recruitment exercise was conducted. The Applicant avers that in a bid to seek amicable redress in respect of the said recruitment exercise and injustice meted on him, he requested the Respondent to invoke a mediation mechanism for the settlement in accordance with Article 76 and 77 of its Staff Rules and Regulations (EBID). That rather than addressing the Applicant’s complaints, the Respondent summarily and capriciously terminated his appointment without due process and without affording him any opportunity to defend himself.

In effect the Applicant’s grievance is that his employment with the Respondent Bank was terminated following a protest letter he wrote directed to the Board of Directors without giving him the right to present his case. It is no doubt that one of the reliefs being sought by the Applicant in his application is a declaration that the Respondent acted arbitrarily, capriciously and in breach of the Respondent’s right to fair hearing. The right to be heard is a fundamental human right which is in accordance with the Principles of Natural Justice. The Applicants having alleged violation of such right invoked a human right issue and this therefore gives the Court the competence to hear the application in accordance with Article 9 (4) of the Supplementary Protocol (A/SP.1/01/05) amending the Protocol of the Court (A/P1/7/91). It provides that the Court shall have jurisdiction to determine cases of human rights violation that occur in Member States.

In addition to the above, this Court has made several decisions on competence relying on Article 9 (4) of the Supplementary Protocol and has concluded in series of their decision that mere allegation of human rights is sufficient to invoke the jurisdiction of the Court. See: BAKARRE SARR (ECW/JUD/03/11), HADIJATOU KAROU (ECW/CCJ/JUD/06/08). On the basis of the foregoing analysis this Court holds that it has the competence to hear and determine this application.

ISSUE 2: Whether the application is admissible.

On the issue of whether the application is admissible, the Court notes that the Applicant filed his application pursuant to the following provisions:

i.     Article 11 of the Protocol of the Court (A/P1/7/91)

ii.     Article 33 of the Rules of Procedure of the Court

iii.     Article 7 of the ECOWAS General Conditions on the privileges of ECOWAS Community Staff & Revised Treaty

iv.     Article 4(2), 9 and 78 (5) of the ECOWAS Bank of Investment and Development Staff Rules and Regulations.

Article 11 prescribes the mode of bringing applications before the Court and Article 33 of the Rules of Procedure provides for the form an application of this kind as referenced in Article 11 of the Protocol. Article 7 of the ECOWAS General Conditions on the privileges of ECOWAS Community Staff & Revised Treaty is self-explanatory. Article 4(2), 9 and 78 (5) of the ECOWAS Bank of Investment and Development Staff Rules and Regulations which deals privileges and immunities, separation from services and appeals for arbitration. The Court notes that with the exception of reference to Article 4 (2) 9 and 78 (5) of the ECOWAS Bank of Investment and Development Staff Rules and Regulations all the other references are not applicable to the present application. However, this does not mean that the application is not admissible because the Court notes that the Applicant has sought to rely on Article 4(2), 9 and 78 (5) of the ECOWAS Bank of Investment and Development Staff Rules and Regulations is the internal working guide that regulates the relationship between management and its employees.

In determining whether this application is admissible the Court will assess the grievances of the Applicant which falls into three categories: violation of right to fair hearing, non-adherence to internal staff rules and regulations, and unfair dismissal.

The Court notes also that in spite of the fact that the Applicant relied on the wrong provisions of the statute, the Court can nonetheless admit the application on the rational that as long as there is a claim for violation of right the application will be admissible. However, reliance on the Staff Rules and Regulations of the ECOWAS Bank for Investment and Development as contained in the application will suggest that there is a dispute between the employee and the management. As such the Court is guided by the provisions of Article 9 (1) (f) of the Supplementary Protocol (A/SP.1/01/05) amending the Protocol of the Court which reads thus:

“(1) The Court has competence to adjudicate on any dispute relating to the following:

f. the Community and its officials.

This conclusion is based on the fact that the Applicant in this case was an employee of the ECOWAS Bank of Investment and Development (hereinafter EBID) and the Respondent being an institution of ECOWAS and the grievances contained in the application justifies that there is a dispute between the employee as an official and the Bank as an institution of ECOWAS. Therefore, Article 9 (1) (f) of the Supplementary Protocol is directly applicable to this application. On the strength of the reference to Article 9 (1) (f) (supra) the Court holds that this application is admissible and accordingly declares it as admissible.

ISSUE 3: Whether the Applicant was unfairly dismissed by the Respondent.

The Court will determine whether the Applicant was unfairly dismissed by addressing the following: the law governing dismissal - Dismissal in fact, the right to be heard and non-compliance with the rules in the recruitment process.

·   T​he law governing dismissal : Dismissal in fact

The Applicant averred that he was appointed by way of letter dated 8th October, 2012 marked as Exhibit 2 and that he was later confirmed by way of letter dated as 1st April, 2015 and marked as Exhibit 3 of the Applicant’s annexure. The Respondent confirms the appointment and further affirmed that the Applicant’s appointment was governed by the Staff Rules and Regulations. However, the Respondent states that the Applicant failed to be confirmed upon completion of his probation and was confirmed a year later due to disciplinary measures taken against the Applicant, and relies on a letter dated 26th December, 2013 marked as Exhibit 7 in the Respondent’s annexure.

The fact of the relationship between the parties was clearly illustrated in the case of Ifeta v. Shell Pet. Dev. Co. Ltd (2006) 7 MJSC 121 at page 133, para. G, Mohammed JSC had this to say: "In the determination of this issue, I need to emphasize the binding-ness of the terms of the contract of service between the parties. There is no doubt that the parties’ freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are, invariably, the guide to its interpretation. On this premise, the material question is; what did the parties in the instant case agree with respect to the termination of the contract of service”.

The Court notes that the parties in this action have become embroiled in a dispute in which the Applicant submits, inter alia, a prayer that the Court makes “A Declaration that the Respondent acted arbitrarily, capriciously and in breach of the Applicant’s right to fair hearing when the Respondent terminated the Applicant’s appointment with the Respondent in May, 2017 without having given the Applicant notice of allegations of any wrong doing and the opportunity of defending himself before the Applicant’s appointment was terminated.” The Court recalls that the employment of the Applicant was governed by the Staff Rules and Regulations (EBID) therefore, should any dispute arise between the parties, they will have recourse to the same. The said Staff Rules and Regulations (EBID) has provisions governing dispute, discipline, and dismissal, the parties having agreed that this is the prevailing law, they are therefore bound by its application.

The ECOWAS Bank for Investment and Development Staff Rules and Regulations in Article 1.5 defines “employee/Staff member” as any person recruited by the Bank under a fixed-term contract (FTC) or an open-ended contract (OEC) or a temporary appointment. Having concluded, from the Letter of Appointment and Confirmation (supra) and the subsequent corroboration by the Respondent that the Applicant was a staff member and the parties confirming that their relationship is bound by the Staff Rules and Regulations (EBID), the Court will set-forth the provisions governing dismissal.

The Court recalls Article 10 of the Staff Rules which states:

1.  A staff member who infringes the standards of conduct stipulated in the Staff Rules and Regulations or who infringes generally accepted conduct expose themselves to the disciplinary measures stipulated in the Staff Regulations. Depending on the seriousness of the offence, the disciplinary measures taken by the Institution in each particular case may range from a warning to a suspension with or without salary, or with reduced salary, to demotion, or dismissal as provided for in Article 9 of the Staff Rules. A Staff member may also be suspended with pay, pending the investigation of charges laid against them and pending a decision on their case.

2.  Any disciplinary measure taken against a staff member shall be notified to the latter in writing.

Further, Article 9 of the Staff Rules and Regulations (EBID) provides that a staff member can be terminated for unsatisfactory performance or misconduct. Notwithstanding the aforementioned provisions, Article 11 of the Staff Rules and Regulations (EBID) states that a staff member should be heard i.e. they possess the right of appeal. The Court also notes that Article 63 (1) of the Staff Rules and Regulations (EBID) defines dismissal as “separation from service at the initiative of the Bank. Dismissal shall be decided by the President.”

The Applicant avers that he was unfairly dismissed by the Respondent by way of letter dated 10th May, 2017 which is marked and Exhibited as 16 of the Applicant’s annexure. The authenticity of the letter is not in dispute and the Respondent, in terminating the Applicant, relied on the following provisions of the Staff Rules and Regulations; Article 63 (3) (h), Article 72 (2) (d) and Article 72 (4). The Court is inclined to set out the aforementioned provisions for clarity. Article 63 (3) (h) provides that: “A staff member’s appointment may be terminated without notice…for any serious offence as defined in Article 72 (2) and (4) of the Staff Regulations.” Article 72 (2) (d) states that: “The following are offences which when committed by a staff member shall be punishable by the sanctions set forth in Article 75 paragraph 2 of the Staff Regulations.” Further, Article 72 (4) provides that:

a)  The gravity of the offence committed shall be assessed in relation to the circumstances (aggravating or extenuating) surrounding the events, the personality of the officer concerned and the latter’s responsibilities, the repetitive nature of the offence, the past conduct of the officer, the impact of the consequences of the offence on the integrity, reputation or interests of the Bank, the intentional or non- intentional nature of the offence or the negligence giving rise to it.

b)  Any offence may lead to a disciplinary measure which shall be in proportion to its seriousness.

Having considered the relevant provisions applicable to dismissal, the Court will now proceed to determine whether the said dismissal was fair. In doing, so the Court will examine the facts of the Applicants alleged misconduct as outlined in the Termination Letter (supra) by the Respondent are listed thus:

·   That the Applicant had an extended probationary period because he misconducted himself and spoke directly to a third party. That he made comments about decision taken by management which were abusive to wit: “it is annoying to hear this”, “it is disappointing and time wasting;”

·   That he was queried for his conduct and his response was unsatisfactory to his superior who submitted the issue for disciplinary measure, the outcome of which was a delay in his confirmation;

·   That his landlord made certain complaints which resulted in him being asked to vacate the premises;

·   That whilst travelling between Nigeria and Togo with his family he had been detained the border police for misconduct;

·   That the Applicant had abandoned a mission unceremoniously which resulted in Management writing him a letter of advice to refrain from unprofessional and disrespectful conduct;

·   That he had sent a letter complaining of irregularities in the recruitment exercise and that he had attacked Management’s credibility in the said letter by using unprintable words like “manipulation” and “change of scores in favor of Management.”

The conclusion made by the Respondent from the alleged infractions cited was that the Applicant was a very intolerable and ungovernable staff. The Court notes that the above outlined misconducts of the Applicant have been dealt with by management and disciplinary action have been taken against the Applicant and therefore it cannot be relied on by management as justification for terminating the employment of the Applicant because the issues have been spent,

In determining whether the actions of the Respondent was lawful the Court will again refer to the Staff Rules and Regulations (EBID), which states that the Respondent can separate any staff member on its own initiative pursuant to Article 9 (3) of the Staff Rules and Regulations (EBID) and that the said act will in itself be a disciplinary measure pursuant to Article 9 of the of the Staff Rules and Regulations (EBID). However, the exercise of this power dictates that it should be done fairly. Accordingly, the of the Staff Rules and Regulations (EBID) provides that the Bank sets up an appeal mechanism so that the aggrieved staff member will be given the opportunity to present his case or have recourse to defend his action without fear of reprisal pursuant to Article 11. The intent of the latter Article is to guarantee the right to fair hearing, and the compliance with due process in such a circumstance. Due process in the instant case is the right to be heard, to be fairly treated, efficiently and effectively by the management in the administration of justice especially when dealing with issues of misconducts that will give rise to disciplinary actions. The rights to due process therefore places limitations on the exercise of disciplinary powers, in order to guarantee fundamental fairness and justice. The Court in the case of Dr. Rose Mbatomon Ako V. West African Monetary Agency & ORS. (ECW/CCJ/JUD/01/13), noted that “the termination of appointment under regulations of any institution of ECOWAS including West Africa Monetary Agency is under statutory obligation to follow for terminating employment of staff.

The Respondent alleges misconducts by the Applicant for which he was queried during the period of his probation yet, the Court notes that he was duly confirmed and made a permanent staff. The Court is inclined to view this as an indication of settlement on the issue as the Respondent had the option pursuant to Article 21 (4) of the Staff Regulations to terminate the Applicant’s appointment at this stage. Further, the Court notes that the Respondent’s aim was to canvas a pattern of behavior that will justify the act of dismissal of the Applicant. Whilst the acts listed have been explicit, the Respondent failed to keep in view the intention of the drafters of the Staff Rules and Regulations (EBID), which is to safeguard due process at all times.

In the case of Edoh Kokou V. ECOWAS COMMISSION (2010) ECW/CCJ/JUD/03/10 2010 pg. 38 para 54, this Court noted that Article 59(d) and 69(6) of the ECOWAS Staff Regulations makes provision for the guarantee of fair proceedings to staff members of the Institution, in such manner as to protect them against arbitrariness, particularly in matters concerning dismissal. Hence, any dismissal effected without the observance of this guarantee, violates the provisions of Article 59(d) and is thereby illegal, null and void.

The Court therefore finds that dismissal based on the Staff Rules and Regulations (EBID) was not complied with i.e. Article 10, 9 (3) and 11 and therefore, the act of terminating the employment of the Applicant is of no legal effects and devoid of safeguard to due process and the Court so hold.

·   The ri​ght to be heard

At this point the Court notes that the Staff Rules and Regulations deems dismissal, among others, as a disciplinary measure for serious offences pursuant to Article 10 (1) and that Article 11 makes room for any staff member in this predicament to be heard. Article 11 (2) specifically states that a staff member can appeal to the ECOWAS Court for measures taken by the Respondent where there is an allegation of non-compliance with service conditions or question a disciplinary measure.

The Applicant, by way of memo dated 30th August, 2016 requested for a mediator in accordance with Article 77 of the Staff Regulations. The Respondent’s Staff Rules and Regulations specifically Article 76 states that one of the principles guiding an appeal is access to mediation at any moment. The Court notes that the Respondent failed to comply with its own Staff Regulations in its response dated 2nd September, 2016. The same read thus:

“Referring to Article 77 of the Staff Rules and Regulations, senior management in consultation with staff representatives designated a staff member to mediate in the conflict resolutions. This designation could not be effected since the adoption of the Staff Rules and Regulations, the true reflections for this purpose have in particular not been able to succeed up to this moment. Your memorandum has the advantage to challenge us on the question to any arrangements to be taken.”

The Court finds this response from the Respondent is ambiguous and that it failed to comply with the provisions of the Staff Rules and Regulations at the time management of the Bank terminated the appointment of the Applicant. The Applicant submitted that his solicitors wrote a letter (Exhibit 18) to the Respondent stating that they had failed to accord him the benefits of Article 78 of the Staff Rules and Regulations and sought several reliefs therefrom. The Respondent in their argument maintained that the President had absolute powers of dismissal on grounds of misconduct and gross insubordination.

The Court notes the words and phrases of the Applicant which the Respondent submitted as abusive language such as: “manipulation,” “it is annoying to hear this, “it is disappointing and time wasting” etc. were in the ordinary sense of the words and phrases and the ordinary meaning attach to them not abusive to justify the reprisal that follows. Having due regard of Article 11 of the of the Staff Rules and Regulations (EBID) which requires that a staff member be heard without the fear of reprisals and given the ordinary meaning of the words and phrases submitted as abusive, the Court deems the act of termination on said grounds to be excessive and tantamount to the act of reprisal in itself. Further, that the Respondent failed to allow the Applicant to defend himself even after dismissal to which he had a right pursuant to the Staff Rules and Regulations. The general objective of the ECOWAS Community is that staff members of ECOWAS should be able to work in an environment devoid unfairness by affording them the right to due process. The Respondent’s failure to hear the Applicant’s appeal depicts a unilateral exercise of discretionary powers by the Bank without recourse to the laid down procedure which was arbitrary and not in the best interest of the institution in particular and the ECOWAS Community in general and the Court so holds.

·   No​n-compliance with the rules in the recruitment process

The Applicant’s claim is that the Respondent failed to comply with the provisions of its Staff Rules and Regulations in the recruitment exercise conducted to fill the position of Director, Public Sector Operations in the Respondent’s institution. Coupled with this is the subsequent termination of the appointment of the Applicant for protesting against the said non- compliance. He further submits that Article 6 of the Respondent’s Staff Rules and Articles 13 and 14 of the Regulations provides for the conditions for the recruitment of professional staff. Particularly sub paragraph 2 of Article 13 of its Staff Regulations which states that priority should be given in descending order to applicants with equal qualifications and skill in the following order:

a.  staff serving at EBID;

b.  Nationals of Member States which are least represented among the staff at the Bank;

c.  Staff of other ECOWAS institutions;

d.  Nationals of other Member States.

The Applicant supports his claim of possessing the necessary qualification and skill with Exhibit 1 which is labeled as “A copy of the Plaintiff’s Curriculum Vitae.” He also submits Exhibits 2 and 3 respectively, which are letters of Appointment dated 8th October, 2012 and Confirmation of Appointment dated 1st April, 2015 as evidence of being a staff of the Respondent at the time of the recruitment for the post of Director, Public Sector Operations. The Applicant submitted his nationality via his curriculum vitae as Nigerian, thereby making him a citizen of the Community: See Exhibit 1. The Respondent admits that the Applicant was duly appointed and subsequently confirmed after a prolonged probationary period.

In interpreting Article 13 aforementioned, the Court notes that whilst the requirement for priority is in descending order favoring candidates within the institution, it does not mandate exclusive recruitment of said candidates. Black’s Law Dictionary, Sixth Edition at page 1194, defines priority inter alia as “When two persons have similar interests in respect of the same subject-matter, but one is entitled to exercise his right to the exclusion of the other, he is said to have priority.” The Court is mindful that the entitlement comes on the premise of equal qualification and skill; Article 13 (2) therefore serves as a mechanism of distinction in the event of equal qualification and not as a tool for discrimination of candidates. Article 13 of the Regulations is to be read at all times in tandem with Article 6 of the Staff Rules which states that whilst priority is given to the highly qualified staff, geographical distribution, physical fitness for the post, and manner of appointment are also considerations of merit. Further, the Court deems Article 14 as the personification of non-discrimination in the recruitment of professional staff. However, Article 13 (3) gives the internal staff member a priority by being exempted from the age limitation set out in recruitment.

The evidence submitted by the Applicant is that a vacancy was advertised by the Respondent, one for which he applied; the Court notes Exhibit 5 attached in support of this. The Applicant also submitted Exhibit 6 which is a letter to the President of the institution protesting for not being shortlisted in the recruitment exercise. The Court also notes that whilst the Respondent alleges that the Applicant vehemently attacked the credibility of management in this letter the content of the letter denotes an enquiry as to why the Applicant was not short listed and recounts the qualifications of the latter, whilst imploring for an investigation into what he called an abnormality. Further in Exhibit 13, put forward by the Respondent, a memo dated 29th August, 2016 by the Applicant the crux of it is a plea for review of the process and a reiteration of qualification and skill for the post, whilst stating rumors about the reasons for the alleged abnormality. The Court is seised with evidence of the qualification and skill of the Applicant and the fact that he was a staff of the institution. The fact that the Applicant tried to notify the management as to the necessity of applying Article 14 of the ECOWAS Bank for Investment and Development Staff Rules and Regulations is not lost on the Court.

Given the preponderance of evidence, the Court notes that the Respondent did not directly rebut the evidence adduced but submitted Exhibits 15 as their rebuttal. Exhibit 15 is a letter dated 6th June, 2017 from KAPI CONSULT, agents for the recruitment process. This piece of evidence adduced was a claim of the score of the Applicant in the initial stage of the recruitment leading to his disqualification. This was supported during oral testimony to wit:

IGWILO: Thank you My Lords. Can you tell My Lords the outcome of the assessment? Thank you Sir.

PW1: My Lord, in the first phase of our mission with EBID, as I explained, we produced a report and on the basis of the assessment of the candidates that we have received, we suggested the candidates that has passed for the next stage. And we were surprised to see two years or three years after, a letter from the bank informing us that one of the candidates have suggested that there has been fraud in the mission which we have completed as well as the premature suspension of our contract. And we sent a letter to the bank that our contract had never been terminated prematurely because we carried out our duty to the last and we submitted our report. But with regard to the candidate that has complained in this letter, making reference to our report, we have given the result of what this candidate scored and it would not be allowed at our level to qualify him because all the candidates scored thirty, and of course to be admissible you need to have twenty five over thirty but the candidate had (23.5). Therefore, he wasn’t qualified, he was not admitted and we reported to the bank in that manner by giving them a new copy of our report. And reported to the bank that it is the decision of the bank to admit only the internal candidates, those that were already employees of the bank. It is the bank that allowed them to continue the process even if they haven’t got the average in the pre-qualification and that is what we have summarized in the letter which we have sent to the bank with regards to the allegations made.

Therefore, in the instance of rebutting the intention of Article 13 (2) of the Staff Rules, especially given the evidence of qualification that the Applicant adduced, the Respondent led evidence through the consultant who disclosed that the Applicant did not obtain a pass mark during the course of interview and therefore was not qualified for the job. The Respondent’s witnesses who were the consultants that were engaged for the recruitment process and who actually conducted the interview for the recruitment gave evidence before the court that the applicant did not obtain pass mark required of him to be recommended for the job. As such, the burden of proof now shifted to the Applicant to show to the Court by way of proof of evidence that he scored the highest mark in the interview. A burden that the Applicant failed to sufficiently discharge. Since the burden of proof shifted to the Applicant it remain his duty to discharge this burden of proof in accordance with the principle that he who alleges must proof the truthfulness of his allegation. 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”. On this note, the Applicant did not sufficiently discharge the burden of proof that shifted on him when the Respondent witnesses led evidence before this Court that he did not obtain any pass mark that will warrant him to be recommended for the job and therefore not qualified for the job.

In determining whether the process of recruitment of the Respondent did not comply with the rules as submitted by the Applicant, the Court will analyze the evidence in support of the claim. The Applicant submits that his letter of protest dated 4th July, 2016 seeking for investigation of the process, shows that at some point the process became marred with irregularity. In response to the Applicant’s Counsel’s question the Respondent’s witness, KAPI CONSULT who had submitted a letter stating that the Applicant scored 23.5 out of a score of 30, testified to wit:

ADEDEJI: That’s alright. Will you be surprised to be aware today that the Defendant participated in subsequent interviews? Will you be surprised? Will it surprise you?

PW1:  In the screening interview process I was not surprised because I was informed by the bank that after our shortlisting, they have decided that all the internal candidates, that’s people that are already working in the bank and that are candidates that have not passed the shortlisting stage, the bank decided on the own that all those that have about twenty five will be retained for the next stage. Therefore, I know that some candidates will redo that. (Bold for emphasis)

The Respondent submits Exhibit 17, a letter dated 28th April, 2017 as its rebuttal to the claims of irregularity alleged by the Applicant. In the letter, the Respondent reminded the Applicant that the same process which he condemns as being fraught with irregularity was the one used in his initial recruitment. In a twist, the Respondent’s submits the Applicant’s letter dated 8th May, 2017 and marked as Exhibit 18 which ironically maintains the claim of the Applicant that the process was illegal but fails to rebut the evidence in the Respondent’s Exhibit 17 which is the Letter reminding the Applicant that the process was fair because it was the same one used to employ him in the first instance. The issue before the Court is non- compliance with the Staff Rules and Regulations of the Respondent pursuant to recruitment of the position for Director, Public Sector Operations not a prior process. The Court notes also that the said Staff Rules and Regulations provides that a staff member can question the conditions of service if they feel that it goes contrary to the law.

Therefore, as to whether the Applicant submitted evidence in support of his claim of non-compliance with procedure by the Respondent in the recruitment process, the Court finds that he did not sufficiently discharge the burden of proof required of him. In adducing evidence of qualification and skill and being a member of staff pursuant to Article 13 (2) of the Staff Regulations, the Court further finds that the Applicant partially discharged his burden of proof. The Applicant having failed to submit evidence in support of his scores been the highest of all the scores of the other candidates in the interview process for recruitment and also having failed to adduce evidence of superior qualification and skill of other candidates that were so far selected, failed to sufficiently discharge his burden of proof in accordance with standard of proof required of him. In view of this analysis, the Court notes that whilst the Respondent had denied the allegation of non-compliance with the rules during the recruitment process, the Applicant did not adduce sufficient evidence to either rebut the evidence led by the Respondent nor did he do so during cross-examination to support this claim as alleged. The Applicant has therefore failed to discharge the burden of proof required of him to support the claim the allegation of non- compliance by the Respondent with the rules in the recruitment exercise and the Court so holds.

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 ECOWAS Bank for Investment and Development’s Staff Rules and Regulations and the Supplementary Protocol of the Court, hereby declares as follows:

1.  That the Court declares itself competent and the application is admissible.

2.  The Respondent acted arbitrarily and unfairly in terminating the Applicant’s appointment in May 2017 without affording him the opportunity of defending himself, thereby making the act illegal.

3.  That the claim by the Applicant with respect to the Respondent’s act of excluding the Applicant in the selection process contrary to Article 13 (2) & (3) of the ECOWAS Bank for Investment and Development’s Staff Rules and Regulations cannot be sustained and therefore dismissed.

In consequence of which the Court orders the Respondent to pay the Applicant as follows:

1.  That the Respondent pays Seventy Five Thousand United State Dollars ($75,000) as damages for unfair termination.

2.  The Court dismisses all other claims brought by the Applicant against the respondent in this application.

3.  Orders the Applicant to return to the Respondent all properties in his possession that belong to the Respondent and was giving to him upon his employment with the Respondent Bank.

4.  Orders the Respondent to pay to the Applicant the costs of this action in the sum of two million Nigerian Naira (2,000,000.00) Naira.

5.  The Court order either party to comply fully with the terms of this judgement within a time frame of one (1) month from the date of this order.

THIS ​DECISION IS MADE, ADJUDGED AND PRONOUNCED PUBLICLY BY THIS COURT, COMMUNITY COURT OF JUSTICE, ECOWAS; SITTING AT ABUJA, NIGERIA ON THE DAY 3rd February, 2020.

Hon. Justice Gberi-Be OUATTARA, Presiding

Hon. Justice Keikura BANGURA, Rapporteur

Hon. Justice Januaria T. Silva Moreira Costa, Member

Mr. Tony Anene MAIDOH, Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 18 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Bangra JA
Moreira-Costa JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC

COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN AT ABUJA, IN NIGERIA

ON 9TH, DAY OF DECEMBER, 2019

SUIT No: ECW/CCJ/APP/18/18

JUDGMENT No: ECW/CCJ/JUD/33/19

 

BETWEEN

MARTHA ADAMU

BLESSING ADAMU

ESTHER ADAAMU

MARY ADAMU

GABRIEL ADAMU

DAVID ADAMU

MOSES ADAMU

JUSTINA ADAMU                                                 - APPLICANTS

AND

FEDERAL REPUBLIC OF NIGERIA                         -RESPONDENT

 

COMPOSTION OF THE COURT

Hon. Justice Dupe Atoki                                               - Presiding

Hon. Justice Keikura Bangura                                       - Member

Hon. Justice Januaria Costa                                          - Member

Assisted by: MR TONY ANENE-MAIDOH                        - CHIEF REGISTRAR

 


JU​DGMENT


Parties

The Applicants are Martha Adamu, Blessing Adamu, Esther Adamu, Mary Adamu, Gabriel Adamu, David Adamu, Moses Adamu and Justina Adamu Community Citizens of Nigerian origin. The Respondent is the Federal Republic of Nigeria and a Member State of the Community.

Subject Matter of the Proceedings

The Applicants are suing for themselves and on behalf of the deceased, their father, Mr. Abutu Adamu pursuant to:

1.        Articles 4, 5 of the African Charter on Human and People’s Rights (ACHPR), violation of the right to life;

2.        Articles 3, 8 of the United Nations Universal Declaration of Human Rights (UDHR);

3.        Section 33 of the Constitution of the Federal Republic of Nigeria.

 The Applicants’ Claim

The Applicants claim that the 1st Applicant was with her father, who is now deceased, on the 26th October, 2010 when their compound in Agwan Rukuba, Jos Plateau was stormed by 10 soldiers on foot following an explosion in the area. That upon entry they started shooting sporadically which resulted in pandemonium. That the deceased was shot by one of the soldiers named Cpl. Aminu.

The Applicants aver that after the deceased had been shot the soldiers retreated save for the soldier (Cpl. Aminu) who had shot the deceased. The First Applicant stated that she confronted the soldier who she believed to have shot the deceased and enquired from him as to why he had shot the deceased. The First Applicant stated that she was joined by a relative who enquired the same thing from the soldier and further copied his name off his uniform. That during this time they held onto the soldier and forbade his retreat.

The Applicants further aver that the nine departed soldiers returned and allegedly hit both the First Applicant and her cousin with the butt of their guns. That after inflicting beatings on them the soldiers took their detained comrade with them.

The Applicants stated that shortly after the departure of the soldiers, a Mobile Police Unit arrived on the scene and took the wounded man (deceased) to the Jos University Teaching Hospital. That the deceased died en route to the hospital due to heavy bleeding sustained from gunshot wounds. That he was certified dead at the hospital and the cause of death was from a primary cause of penetration and a secondary cause of gunshot. That a report was first made to the Nasarawa Gwom Divisional Police Headquarters and was later transferred to State Criminal Investigation Department (C.I.D.) where statements were taken from witnesses.

The Applicants aver that the deceased before his death had warned a certain Corporal Aminu to desist from harassing his daughter, one Martha, but the latter failed to heed his warning.

The Applicants further aver that the death of the deceased has left the family vulnerable to severe mental torture and financial hardship as the deceased who was the breadwinner had been killed.

The Applicants aver that series of complaints have been made by the Applicants to relevant agencies (copies were annexed) but the complaints have not been addressed. That the police have refused to prosecute the unlawful killing of the deceased whose wife died not long after having being knocked down by a vehicle.

The Applicants therefore claim the following reliefs:

1.        A declaration that the unlawful and unjustifiable killing of Mr. Abutu Adamu, the father of the Applicants, by officers of the Nigerian Army, amounts to a violation of fundamental right to life of Mr. Abutu Adamu, the deceased, as contained in Articles 4, 5 of the ACHPR; Articles 3, 8 of the UDHR; and Section 33 of the Constitution of the Federal Republic of Nigeria (as altered).

2.        A declaration that the failure of the Respondent to investigate, prosecute and compensate the unlawful and unjustifiable killing of Mr. Abutu Adamu by officers of the Nigerian Army, is a violation of fundamental human right to life of Mr. Abutu Adamu, the deceased, as contained in Articles 4, 5 of the ACHPR; Articles 3, 8 of the UHDR; and Section 33 of the Constitution of the Federal Republic of Nigeria (as altered) together with the Revised Treaty and all other applicable ECOWAS Protocols.

3.        An order of Court directing the Respondent to compensate the family of the deceased with the sum of N1, 000,000,000 (One Billion Naira).

4.        And for such further or other orders the Court may deem fit to make in the circumstance.

T​he Respondent’s Defence

The Respondent prayed for an extension of time to file their defense and sought the following orders:

a.     A declaration that the Respondent has not breached the fundamental human rights to life of Mr. Abutu Adamu.

b.     An order dismissing the Applicant’s action in its entirety.

c.     An order awarding cost against the Applicant on behalf of the Respondent.

The Court granted the order for an extension of time and proceeded to hear the application on its merits.

The Respondent in its defense stated that there is only one Respondent as is evident from the processes filed. That the events leading up to the death of the said Mr. Abutu Adamu are speculative and puts the Applicants to the strictest proof.

The Respondent stated that their investigations showed that there are no army officers known as Corporal Aminu and Lt. Col. A. Y. Abdul who served on any task force and that the Special Task Force in Angwan Rukuba had no record of any shooting on the 26th December, 2010 as claimed by the Applicant.

The Respondent also denies the events after the alleged shooting of the deceased and puts the Applicants to the strictest proof. The Respondent stated that the Nigerian Police Force investigated the matter and puts the Applicant to the strictest proof as it believes that its agents took all reasonable steps to investigate all the complaints of the Applicants.

The Respondent urges the Court to dismiss the matter as it is frivolous, vexatious, baseless, and incompetent and an abuse of Court process.

Issues for determination

1.   Whether the Court has competence to hear the application.

2.   Whether the Applicants are victims.

3.   Whether the Applicants established the claim of unlawful killing against the Respondent.

4.   Whether the Respondent investigated the allegation of murder contained in the complaint forwarded to it.

5.   Whether the Applicants can bring a claim for compensation in the circumstances.

ISSUE 1: Whether the Court has competence to hear the application.

The Court, as a first criteria, has always addressed its competence in determining an issue before dealing with the substance of the issue.

The Applicants’ claim is for violation of Article 4 and 5 of the African Charter on Human and People’s Rights (ACHPR), Article 3 and 8 of the Universal Declaration on Human and People’s Rights (UDHR) and Section 33 of the Constitution of the Federal Republic of Nigeria. They are claiming two declarations respectively towards the alleged unlawful and unjustifiable killing of Mr. Abutu Adamu (their father) and the failure to investigate, prosecute and compensate for the said unlawful and unjustifiable killing. Further, that the Court grants an order directing the Respondent to compensate the family of the deceased.

The Court notes that pursuant to Article 9(4) of the Supplementary Protocol (A/SP.1/01/05), it “…has jurisdiction to determine cases of violation of human rights that occur in any Member States.” On this note this Court has established, or decided in several cases, that for it to have competence of jurisdiction to determine a matter before it allegations of human rights is key.

The threshold that the Court uses to consider whether an application is properly before it was laid down in the case of MOUSSA LEO KEITA V. THE REPUBLIC OF MALI (2007) ECW/CCJ/JUD/03/07, where the Court held that it has a competence to adjudicate matters involving the violation of human rights within its Member State. Therefore, the threshold that has been set by precedent is that the application need only contain an allegation of a violation for it to be deemed admissible.

Further, in the case of KAREEM MEISSA WADE V. REPUBLIC OF SENEGAL (2019) ECW/CCJ/JUD/13/19, at pg. 259 Para. 95 (3), this Court held that: “…simply invoking human rights violation in a case suffices to establish the jurisdiction of the Court over that case.”

The Court therefore holds that it has competence to hear and determine the application before it.

IS​SUE 2: Whether the Applicants are victims

The Applicants are bringing this action for themselves as beneficiaries and on behalf of the deceased Mr. Abutu Adamu whom they claim is their father. They brought this action pursuant to Article 4 & 5 of the ACHPR on violation of the right to life; Article 3 and 8 of the UDHR; Section 33 of the Constitution of the Federal Republic of Nigeria.

The Applicants claim that they are the children of the deceased. That the death of the deceased had left their family vulnerable to severe mental torture and financial hardship as the deceased was the bread winner and had been killed unlawfully and/or unjustifiably.

The issue here for determination is whether the Applicants are qualified as victims for them to bring this action. In accordance with their claims, firstly as children of the deceased and secondly as dependents of the deceased who had been the bread winner in the family, that the unlawful killing of the deceased has flung the Applicants to financial hardship including they being subjected to severe mental torture.

In considering whether the Applicants are victims under the law, which is Article 10 (d)  of the Supplementary Protocol, the Court will look to existing definitions from the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Survivors of Violations of International Human Rights Law and Humanitarian Law, GA Res 60/147, pmbl, Sec IX, UN Doc A/RES/60/147 (March 21, 2006) which defines it as:

“…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 constitute gross violations of human rights, or serious violations of humanitarian law norms.”

The European Court of Human Rights also proffered the definition of victim/s, in the case of GROPPERA RADIO AG and others v SWITZERLAND (1990) Application No. 10890/84, as:

“B​y ‘victim’, Article 25 (1) means the person directly affected by the act or omission which is in issue.”

The Community Court of Justice (CCJ) has also in its jurisprudence a definition of victim put forward in the case of AZIAGBEDE KOKOU & 68 Ors . V REPUBLIC OF TOGO (2013) ECW/CCJ/JUD/07/13 @ Page 175 par 24 where it held that:

“To claim to be a victim, there must exist a sufficient direct link between an applicant and the prejudice he deems to have suffered as a result of the alleged violation.”

The CCJ in the case of ODAFE OSARADA v ECOWAS COUNCIL OF MINISTERS, ECOWAS PARLIAMENT & ECOWAS COMMISSION (2008) ECW/CCJ/JUD/01/08 @ 27 held that:

“Generally, and from a legal standpoint the necessity for an Applicant to provide justification of interest in a case is attested by the adage that ‘where there is an interest, there is an action’ and also ‘an interest is the measuring rod for an action’. In other words, an application is admissible only when the applicant justifies that he brings a case before a judge for the purposes of protecting an interest or defending an infringement of such. Such an interest must be direct, personal and certain.”

Taking cognizance of the above definitions, it is clear that the term connotes two categories: direct and indirect. The CCJ in the case of REV. FR. SOLOMON MFA V FEDERAL REPUBLIC OF NIGERIA (2019) ECW/CCJ/JUD/06/19 @ page 15 put forward that a victim is also “…a person who suffers directly or indirectly any harm or pain (physical or mental injury), emotional suffering (through loss of family member or relation), economic loss (loss of properties) or any impairment that can be categorized as human rights violation. Additionally, other than the loss, the Applicant must prove an interest in the matter which must be direct and personal.”

The Applicants’ claim is for mental torture and physical torture suffered during and as a result of the death of their father by unlawful means. The facts averred are that he was shot whilst in his home by soldiers in front of his children (the Applicants), particularly the First Applicant. The First Applicant, when crossed-examined, further testified on oath that the deceased was her father:

FRANK:   Cross examination.

COURT:  Yes, the respondent.

TARFA:   Yes my lord. You said your name is?

PW2:       Martha Adamu.

TARFA:    Okay, are you the 1st child of the deceased?

PW1:       Yes I am his 1st child. I am the senior, the most senior.

TARFA:   Okay. Sorry, you said this incident happened 9 years ago?

PW2:       Yes. I said December, 2010.

The Court observes that the Respondent did not challenge the capacity of the Applicants as being children of the deceased and indirect victims. In the circumstances and without any evidence to the contrary by the Respondent, the claim by the Applicants being children of the deceased remain substantive.

Further, the Court will rely on the jurisprudence of the European Court of Human Rights in the case of TSALIKIDIS and OTHERS v. GREECE (2017) NO. 73974/14 where it was held that evidence of relationship for claiming as victims is not relevant if they are immediate family.

The facts in the instant case denote relationship; all facts not challenged are deemed admitted, since the Respondent failed to disprove the fact of the Applicants being children of the deceased. The Court finds that the Applicants are indirect victims of the violation of the right to life because they did not suffer the direct deprivation of the right to life.

Having found the Applicants as indirect victims of the violation of the right to life, the Court will briefly reason why they also consider them equipped with the relevant capacity. Pursuant to Article 10 (d) of the Supplementary Protocol grants access 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.”

Therefore, what the law demands is that said victims on a claim for violation of their human rights can approach the Court in that capacity pursuant to Article 10 (d). In the case of CENTER FOR DEMOCRACY AND DEVELOPMENT v MAMADOU TANDJA & REPUBLIC OF NIGER (20111) ECW/CCJ/JUD/05/11 @ page 27 the CCJ held that:

“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 therefore holds that the Applicants are indirect victims who have the requisite capacity, according to law, to bring a claim on their own behalf for the violation of human rights.

IS​SUE 3: Whether the Applicants established the claim of unlawful killing against the Respondent

Generally, the principle of law is that the burden of proving any allegation rests with the person making the allegation. The Court has developed case law with respect to the burden of proof. The burden of proof requirement was settled in the case of FEMI FALANA & ANOR V. REPUBLIC OF BENIN & 2 ORS (2012) ECW/CCJ/JUD/02/12, where it 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 the case of 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 that will rebut the claim or take the risk of putting nothing at all if the claim by their estimation is weak and unproven.

The duty to prove alleged facts rests with the Applicants. The Court in analyzing this issue will consider the following: evidence of a military presence, evidence of the attire of the assailants, evidence of the mobile police all of which will establish State responsibility and prove or disprove the claim of unlawful killing of the deceased.

The Applicants alleged that they are from Agwan Rukuba, Jos Plateau. The facts as alleged point to a military presence within the immediate vicinity of their home which they aver is close to Dogon Dutse Barracks. They further alleged that soldiers of the Nigerian Army were at this barracks. The Applicant further testified on oath that the barracks was their before the incident that led to the killing of their father:

TARFA: She earlier, my lord she earlier told the Court that the camp, the counsel asked her where the camp was built and as she said it was because of the explosion, that there was an earlier explosion and so the military came.

PW2:    No. the barracks was there long time before the explosion. The barracks has been there before the explosion.

TARFA: Very close to you house.

PW2:     Yes, if you are in the barracks you can see our house.

The Applicants also alleged that the assailants were dressed in military fatigues and carried guns. That one of the assailants (Cpl. Aminu) had shot her father, the deceased, whilst the other (Lt. Col. A. Y. Abdul) had participated in beating her and her cousin Obeya after they apprehended Corporal Aminu who had shot their father. That the assailants, alleged soldiers, had been taken away by their boss who questioned the act of shooting:

TARFA: So you were not even the one that saw the military officers when they came with their boss. You were already unconscious then or at what point where you unconscious? At what point?

PW2:     I said before, by the time I held him and the colleagues wanted to remove him that was the time the boss came when the boss came he started to speak. I heard him when he said why? Why did you shoot? And it was at that time that I lost consciousness and they took me to the hospital.

The Respondent in reply corroborated by way of letter Exhibited as F, Paragraph 25 and dated 3rd November, 2011. The said letter contained a denial that the named assailants, Cpl. Aminu and Lt Col. A.Y. Abdul, were not agents in the Special Task Force. Further, that there was no record of a shooting of the deceased at Agwan Rukuba on 26th December, 2010. They maintained that they had conducted an investigation into the complaint of the Applicants and had come out with a finding.

The Court notes that state responsibility includes the State's power to protect its citizens outside its national boundaries or a State's exercise of its right and duty to do so. Naturally, obligatory rights under international law implies responsibilities which make States liable for their obligations if they are breached, provided the breach is attributable to the state. This makes the State responsible for direct violations of obligations under international law either by its internal institutions, however they are defined by its domestic law; by entities and persons exercising governmental authority; and by persons acting under the direction or control of the state.

The Court further notes that a state is not internationally responsible if its conduct was required by a peremptory norm of general international law. Or if its conduct was taken in conformity with the right to self-defense under the United Nations Charter. Or if it constituted a legitimate measure to pressure another state to comply with its international obligations and if it was taken as a result of force majeure (greater force) beyond the state’s control. If it could not reasonably be avoided in order to save a life or lives, or if it constituted the only means of safeguarding an essential interest of the state against a grave and imminent peril, where no essential interest of the states toward which the obligation exists (or of the international community) was impaired.

In determining the issue, the Court analyzed the principle of states responsibility alongside the facts, i.e. references to military uniforms and equipment; in particular the imposition of a curfew; the conduct typical of security operations, such as the searches of premises and questioning of residents. Further, the Respondent’s corroboration of military operations in the area but had not reported any incidence of unlawful killing concludes therefore, that the area was under military operations. By extension, this area was under state responsibility, therefore a violation occasioned by persons acting under the direction or control of the state against a citizen will render the state liable.

The Respondent, in the instant case maintained that there was State Control over the area but submitted that its agents had no report of the incident resulting in the death of Mr. Abutu Adamu. They denied knowledge of the named assailants and claimed to have conducted an investigation to ascertain the facts as alleged. The Court notes that the alleged unlawful and unjustified killing of Mr. Abutu Adamu by persons alleged to be soldiers/agents, of the Respondent, is supported by a Death Certificate marked and produced as Exhibit B states that the primary cause of death was “penetrating” and the secondary cause of death was “gunshot”. The Respondent did not rebut this fact but said that the incidence was unreported by their Special Task Force. The Court notes however, that the facts denote that the Mobile Police Unit transported the deceased and the first Applicant to Jos University Teaching Hospital where he was certified dead.

The Court recalls that in discharging its obligation the State is required to investigate any alleged violation. The Court notes that the Respondent however, steadfastly claims to have investigated the issue but the Applicants argued that the investigation/s were inadequate and/or non-existent. Whereas the Respondent considered the investigations to have been effective, it still had a positive duty to investigate the alleged criminal conduct even though it enjoys a margin of discretion as to how it complies with that duty. In carrying out this task, it should have an element of scrutiny in the interest of natural justice principles.

The violation of the right to life, pursuant to Article 4 of the ACHPR was eminent after the Respondent failed to conduct an investigation notwithstanding the fact that the Applicants had requested an investigation into the death of a human being, a crime under the extant laws of Nigeria. The African Commission in the case of Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v. Zimbabwe (2012) ACHPR, 295/04 found that Zimbabwe violated articles 1 and 4 (right to life) of the African Charter. While the right to life is not absolute, law enforcement officers are only permitted to kill in self-defense or in the defense of others against the imminent threat of death or serious injury. Use of deadly force must be a last resort. Further, that an act that violates human right laws, even if it is not directly imputable to a state, can lead to international responsibility of the state if the state fails to exercise due diligence in preventing or responding to the violation.

The Court notes that the Applicants and the deceased were attacked; the attack resulted in death and serious grievous bodily harm and mental distress. This should have been recognized and addressed by the Respondent who failed to treat the criminal offence with the severity it deserves. Therefore, the Respondent negligently allowed the violation, warranting liability for failing to adduce relevance to the unlawful and justified killing of a man. The Court therefore finds the Respondent liable for the unlawful killing of Mr. Abutu Adamu and holds that the Respondent violated the right to life of the deceased.

ISSUE 4: Whether the Respondent investigated the allegation of murder contained in the complaint forwarded to it.

Pursuant to its responsibility as a state who has signed and ratified the ACHPR, the Respondent is under obligation to investigate into the allegation of murder that is brought to his attention. This investigation must meet the standards of natural justice principles as was held by the European Court of Human Rights in the case of GUILIANI GAGGIO V ITALY [GC] (2011) no. 23458/02, &303, ECHR; where the Court found that the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case. This Court, in the instant case, notes that whilst the Respondent admitted to mounting an investigation to into the allegation of death, the said investigation was inadequate.

The Applicant specifically pleaded that several complaints were made to relevant agencies of the Respondent about the shooting incidence that resulted in the death of their father but that the complaints were not addressed. They further alleged that the police also refused to prosecute the unlawful killing of their father. The Court notes that up to the time of the Application no such evidence to prove that the Respondent actually investigated and prosecuted those responsible for the shooting that resulted in the unlawful killing of the deceased was established.

The Respondent maintained however, that they mounted an investigation and that their investigation showed that there were no army officers known as Corporal Aminu and Lt. Col A.Y. Abdul who served on any task force. Agwan Rokuba had no existing records of any shooting on the 26th December 2010 as claimed by the Applicants.

The Court therefore holds that the duty of the Respondent to investigate into the murder of the deceased, father of the Applicants, was compromised. This compromise led to a breach of its obligation and a violation of the right to life. The Court therefore holds that the Respondent violated the right to life of the deceased.

I​SSUE 5: Whether the Applicants can bring a claim for compensation in the circumstances

That Applicants alleged that the deceased was the breadwinner in the family, indicating that they were all dependents of the deceased. They further alleged that the death of the deceased has caused them financial hardship and has subjected them to severe mental torture and as such they qualify as victims by reason of the fact of them being dependents of the deceased (their father). The Applicants, having lost their source of support and the state having failed to investigate the allegations, puts the Respondent in a blameworthy situation. The Court is obliged to consider whether the Applicants being found in such a situation as deprivation of support, are entitled to compensation.

The Court notes that compensation in human rights cases is meant to put the claimants in the position that they were before the violation occurred. This is meant to cater for any proven hardships following the violation. In the present case, since the Applicants claim that their support has been extinguished by the demise of their father, who was the breadwinner for the family, it is incumbent upon the Court to consider the justification of their entitlement to compensation or otherwise.

The Court notes that the Applicants had suffered variously since the death of the Mr. Abutu Adamu. Though the Applicants failed to furnish the Court with their respective dates of birth, the facts of the case are that they include children of school going ages, who were deprived from going to school because their breadwinner was killed unlawfully. In her attempt to clarify the issue of date of birth of the Applicants, the First Applicant who herself did not provide documentary evidence in support of her age, during her oral testimony on oath clearly submitted that her birth was unrecorded. The Court recalls that the Respondent never controverted these facts neither in their defense nor during cross examination. It is trite law that, uncontroverted oral evidence on oath concerning any fact in issue in a trial renders the said fact as duly proven and the Court is unfettered to rely on same for its decision. This is particularly so where the credibility of the witness stands not impugned. Consequently, the Court deems that facts specifically pleaded by the Applicants and not denied by the Respondent are deemed to have been admitted.

Having declared that the Applicants are indirect victims clothed with the requisite capacity to bring their claims against the Respondent, and acknowledging that they have suffered irreparable loss, and having been subjected to various degrees of hardship, both present and in future, this Court finds that they are entitled to compensation and the Court so holds.

D​ecision

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, and also the Supplementary Protocol of the Court and the Court’s Rules of Procedure, decides as follows:

1.   The unlawful killing of Mr. Abutu Adamu was a breach of Article 4 of the ACHPR and declares that the Respondent violated the same.

2.   The Respondent failed to carry out proper investigations into the allegation of murder in order to identify the perpetrators and to prosecute same in accordance with the law resulting in a breach of Article 4 of the ACHPR and a violation of the same.

3.   That the Applicants as victims on their own rights, are entitled to compensation for the damages suffered.

O​rders and awards

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

1.   To pay to the Applicants the sum of 50,000,000 (Fifty Million Naira) to be shared equally as compensation for moral and material damage.

2.   To pay the sum of 2,500,000 Million Naira (Two Million Five Hundred Thousand Naira) as costs to the Applicants.

TH​IS DECISION IS MADE, ADJUDGED AND PRONOUNCED PUBLICLY BY THIS COURT, COMMUNITY COURT OF JUSTICE, ECOWAS; SITTING AT ABUJA, NIGERIA ON THE DAY 9th DECEMBER, 2019.

HON. JUSTICE Dupe ATOKI - PRESIDING

HON. JUSTICE Keikura BANGURA – MEMBER

HON. JUSTICE Januária T. S. M. COSTA - MEMBER

 

Mr. Tony ANENE-MAIDOH – Chief Registrar

 

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
Search summary

 

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/ 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/ 55 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Bangra JA
Search summary

 

COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN

STATES (ECOWAS)

HOLDEN AT ABUJA, IN NIGERIA

Monday, 4th March 2019

 

Bet​ween

 

KARIM MEISSA WADE                                                                             APPLICANT

Plaintiff Counsel: Maîtres Ciré Clédor Ly,

Michel Boyon, Demba Ciré Bathily, Mohamed Seydou Diagne

And

REPUBLIC OF SENEGAL                                                                            DEFENDANT

Defence Counsel: Defendant was represented by Antoine Diome

(State Judicial Officer of Senegal), and Maîtres Yérim Thiam, Papa Moussa Felix Sow,

Samba Biteye, Bassirou Ngom, all lawyers registered with the Bar Association of Paris

 

General List: No. ECW/CCJ/APP/55/18                Judgment No. ECW/CCJ/JUD/13/19

 

BEFORE THEIR LORDSHIPS

 

1.  Hon. Justice Gbéri-bè Ouattara                                              Presiding

2.  Hon. Justice Dupe Atoki                                                         Member

3.  Hon. Justice Keikura Bangura                                                 Member

Assisted By: Maître Aboubacar Djibo Diakité                              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;

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

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

-     Having regard to the Initiating Application of the above-cited Applicant, received at the Registry of the Court on 18 December 2018;

-     Having regard to the Defence of the Republic of Senegal received at the Registry of the Court on 18 December 2018;

-     Having heard each Party through their respective Counsel; and

-     Upon deliberation in accordance with the law;

 


FACT​S AND PROCEDURE


 

By Application received at the Registry of the Honourable Court on 13 December 2018, Karim Meissa Wade, whose Counsel was constituted by Ciré Clédor Ly and three other barristers-at-law, brought his case before the ECOWAS Court of Justice, for the purposes of pleading that it may please the Court to declare as follows:

That the Honourable Court has jurisdiction to adjudicate on the case; That the Application is admissible;

That the Republic of Senegal violated Karim Meissa Wade’s right to participate freely in the public affairs of his country;

To adjudge that the Applicant’s right to vote is violated and that his right of eligibility to stand for election in the 24 February 2019 election is violated;

To order the Republic of Senegal to restore his name immediately on the electoral roll for the 24 February 2019 election and to issue him with a voter’s card;

To adjudge that the Senegal Electoral Code as amended by Law No. 2018-22 of 4 July 2018 in its Article L57 of the Electoral Code is a violation of the right to free participation in elections;

To order the Republic of Senegal to remove all the obstacles to the Applicant’s participation in the Presidential elections of 24 February 2019 originating from the said amendments to the law;

To find that Karim Meissa Wade’s right to effective remedy before the law courts is violated;

To order the Republic of Senegal to strictly observe the international instruments binding on it in regard to respect for Karim Meissa Wade’s rights; and

To ask the Republic of Senegal to bear the costs.

On the same day as his Initiating Application, Karim Meissa Wade filed before the Court an Application for Expedited Procedure, seeking the same remedies.

On 18 December 2018, the Republic of Mali, represented by the State Judicial Officer and assisted by Maître Yérim Thiam and four other lawyers, raised the question of prima facie incompetence of the Court.

Relying on his written pleadings and on the defence put up by his lawyers Maître Ciré Clédor Ly and three others, Karim Meissa Wade contended that since the date for the presidential elections in Senegal was fixed for 24 February 2019, in his capacity as the candidate for the opposition political party known as Parti Démocratique Sénégalais (PDS), on 16 April 2018, he went before the Administrative Commission which sat at the Embassy of Senegal in Kuwait, the latter Commission having been empowered to receive Senegalese citizens in regard to election matters, to submit his application to have his name featured on the electoral roll, in compliance with Law No. 2018-476 of 20 February 2018 on Extraordinary Revision of the Electoral List; that the said Commission received and registered his application, and that on the same day, the Commission issued him with a receipt, with number 80651515. Karim Meissa Wade averred that before the revision exercise, he already had a voter’s card and was legally registered on the electoral roll.

He further argued that whereas his registration on the electoral roll was consistent with the provisions of Article 4 (1) of the above-cited Law No. 2018- 476 of 20 February 2018, he noticed that his name was among a list of persons whose registration on the electoral roll had been rejected on the ground that he was not entitled to be registered on the list he intended, in compliance with Article L.31 of the Electoral Code.

That on 2 July 2018, the central administrative units of the Ministry of Interior, through the agency of the Director of Training and Communication at the lection headquarters, acknowledged that the decision to reject his registration on the electoral roll originated from them.

That on 4 July 2018, i.e. less than 48 hours after that decision, the Republic of Senegal promulgated Law No. 2018-22 on Revision of the Electoral Code, with a new Article L.57, in the terms of which for one to be eligible for the presidential election, one must be sponsored by a list of voters, and for one to be sponsored, one must be a qualified voter. That the law was published in Official Journal No. 7106 of the Republic of Senegal the following day, 5 July 2018.

He claims that with a view to contest the rejection of his application to be registered on the electoral roll, he, on 7 July 2018, filed an application before the Tribunal d’Instance Hors Classe (TIHC) of Dakar against the Minister of Interior, seeking restoration of his registration. That by Order No. 470 made on 23 July 2018 in first and last resort, the President of the said TIHC of Dakar declared that he had no jurisdiction to adjudicate upon the matter.

That on 2 August 2018, he filed an appeal before the Supreme Court seeking to quash the said Order No. 470. However, the Supreme Court, by Judgment No. 49 delivered on 30 August 2018, dismissed his appeal.

In blaming the Republic of Senegal, that by its actions, it had violated Article 13 (1), (2) of the African Charter on Human and Peoples’ Rights, Articles 2, 14(1) and 25 of the International Covenant on Civil and Political Rights, Paragraph A.1 of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Articles 34 and 35 of the Criminal Code of Senegal, Articles L.31 and L.57 of the Electoral Code of Senegal, Article 7 of the African Charter on Human and Peoples’ Rights, Karim Meissa Wade brought his case before the Community Court of Justice, ECOWAS requesting the Court to declare sanctions against the Republic of Senegal for violation of his rights as enumerated above.

He thus requests that it may please the Court to make the following declarations:

That it has jurisdiction to hear the case; That the Application is admissible;

That the Republic of Senegal violated his right to participate freely in the public affairs of his country;

To adjudge that the Applicant’s right to vote is violated and that his right of eligibility to stand for election in the 24 February 2019 election is violated;

To order the Republic of Senegal to restore his name immediately on the electoral roll for the 24 February 2019 election and to issue him with a voter’s card;

To adjudge that the Senegal Electoral Code as amended by Law No. 2018-22 of 4 July 2018 in its Article L57 of the Electoral Code is a violation of the right to free participation in elections;

To order the Republic of Senegal to remove all the obstacles to the Applicant’s participation in the Presidential elections of 24 February 2019 originating from the said amendments to the law;

To find that Karim Meissa Wade’s right to effective remedy before the law courts is violated;

To order the Republic of Senegal to strictly observe the international instruments binding on it in regard to respect for Karim Meissa Wade’s rights; and To ask the Republic of Senegal to bear the costs.

By a separate application dated 6 November 2018 and received at the Registry of the Community Court of Justice, ECOWAS on 13 November 2018, Karim Meissa Wade requested that his case be heard under expedited procedure.

To buttress his request for expedited procedure, he again claims that his application for his name to be put on the electoral roll for the presidential election of 24 February 2019 was rejected by the administrative units of the Ministry of Interior for the purposes of excluding him from the election, whereas he had already been recognised officially by the first national opposition party, the Parti Démocratique Sénégalais (PDS).

He further pleads that on 22 January 2018, the President of the Republic of Senegal fixed by law 24 February 2019 as the date for the next presidential elections; that the Constitutional Council shall publish the provisional list of candidates at least 35 days before the election date of 24 February 2019; that the final list of candidates will then be made public by the Constitutional Council after examining the complaints of those whose candidatures were rejected, following the publication of the provisional list; thus, he pleaded that there was obvious urgency for the ECOWAS Court to hear with minimum delay, under expedited procedure, the case of violation he had suffered. He maintains that under the prevailing conditions, if his substantive application should be heard under the ordinary procedure, his requests will have no interest and will turn out as devoid of purpose; he pleads that his request for expedited procedure is justified on the ground that the electoral process had already commenced.

In response, the Republic of Senegal, represented by the State Judicial Officer, and a Defence Counsel constituted by Maître Yérim Thiam and four others, asked the Court to dismiss the entire Application brought by Mr. Karim Meissa Wade as ill-founded and also ask him to bear the costs.

The Republic of Senegal contends that the subsidiary reconstitution of the electoral roll as instituted by Law No. 2016-27 of 19 August 2016 went hand-in- hand with the introduction of the ECOWAS electronic biometric card ushered by Law No. 2016-09 of 14 March 2016; that in the terms of the provisions of Article 4(1) of the law thus reconstituting the electoral roll: “Upon completion of the reconstitution exercise, only voters who had presented themselves physically and gone through the formality as well as those newly registered shall feature on the electoral roll”; that Mr. Karim Meissa Wade did not go to the accredited bodies mandated to carry out that exercise for him either in Senegal or abroad; consequently, his name no more featured on the electoral roll, in compliance with the provisions of Article 4(1) cited above, and since his name no more appeared on the electoral roll, Mr. Karim Meissa Wade could not obtain the new ECOWAS electronic biometric voter’s card.

That all the same, the extraordinary revision of the electoral roll for the presidential elections of 24 February 2019, decided via Law No. 2018-476 of 20 February 2018, notably gave the opportunity to all Senegalese whose names were still not found in the voter’s register to apply to have their names registered;

That Mr. Karim Meissa Wade, like any other interested citizen, went before the administrative commission of the Senegalese Embassy in Kuwait and requested for the issuance of the ECOWAS identity card and the voter’s card; that in the course of processing the data for the revised electoral roll, certain names were rejected and the application of Mr. Karim Meissa Wade for his name to be registered on the electoral roll was rejected on the basis of Article L31 of the Electoral Code; that in its Article 11(2), Law No. 2018-476 on the extraordinary revision of the electoral list for the purposes of the presidential election of 24 February 2019, provided that that the time limit for receiving complaints relating to the final list thus drawn up was fifteen (15) days starting from 3 July 2018 and that: “From 3 July 2018, to reclaim his rights, any voter omitted or a victim of a purely technical error of his registration, and in possession of his receipt, shall have fifteen (15) days to report the matter directly or through the CENA or the Presiding Judge in his area of jurisdiction, or through the Head of Diplomatic Mission or Consulate, if he resides outside Senegal”.

That in the case of Mr. Karim Meissa Wade, who resides in Qatar, and who applied in Kuwait for his name to be registered on the electoral roll, he rather chose to bring his case before the Tribunal d’Instance Hors Classe (TIHC) of Dakar, whose jurisdiction covers the administrative zones of Dakar and Rufisque only, instead of complaining to His Excellency the Ambassador of Senegal in Kuwait.

That the said court therefore declined jurisdiction to hear the case in an order made on 23 July 2018, which decision he appealed by filing an application before the Administrative Chamber of the Supreme Court of Senegal, seeking to quash the earlier decision made by TIHC of Dakar; that his application was dismissed in a Supreme Court judgment dated 30 August 2018; that upon his application having been thrown out, he brought his case before the ECOWAS Court of Justice for violation of his right to vote, his right of eligibility to stand for elections, and his right to effective remedy.

Concerning the application for expedited procedure, the Republic of Senegal maintains that Mr. Karim Meissa Wade simply argues that since the electoral process had already begun, “any delay, very characteristic of the ordinary procedure of the Court, runs the risk of extinguishing the essence of his Application, and render his substantive request purposeless,” without demonstrating whether he was prevented in any way whatsoever from filing his application earlier than he did; the Republic of Senegal puts up the defence that the only urgency Mr. Karim Meissa Wade may be feeling, as hanging on him, is the one created by his own failings by deliberately choosing to ignore the opportunity open to him by the applicable Senegalese law to enable him put his name on the electoral register.

The Republic of Senegal therefore requests that the application for expedited procedure be rejected as ill-founded and Karim Meissa Wade be asked to bear all the costs.

At the hearing of 8 February 2019, the matter was heard under expedited proceedings.

 


ANALYSIS OF THE COURT


 

REGARDING JURISDICTION OF THE COURT

The Republic of Senegal argues that prima facie, the Court has no jurisdiction over the matter.

In the terms of 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, the Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.

In compliance with these provisions, the Honourable Court has affirmed on numerous occasions that allegations of violation of human rights in an application suffice on their own for the purposes of upholding the jurisdiction of the Court without prejudging the veracity of the facts alleged; this was notably the decision made in Les Etablissements VAMO and Pascal Kuekia v. Republic of Benin (Judgment No. ECW/CCJ/JUD/12/15 of 20 April 2015), and El Hadj Mame Abdou Gaye v. Republic of Senegal (Judgment No. ECW/CCJ/JUD/01/12 of 26 January 2012).

The Applicant is necessarily required to invoke violation of his human rights; in that the Applicant must prove that the facts are indeed related to acts he considers prejudicial to his rights, before the jurisdiction of the ECOWAS Community Court of Justice may be upheld; reference may be made to Jamal Oliver Kane v. Republic of Mali (Judgment No. ECW/CCJ/JUD/10/17 of 16 October 2017).

In the case at hand, the Applicant invokes violation of his right to participate in the public affairs of his country, violation of his right to vote, and violation of his right of eligibility to stand for elections.

The Court observes that the personal rights listed out by the Applicant form part of the human rights whose protection is within the ambit of the powers of the Court; thus, the Court hereby declares that it is competent to adjudicate on and determine the allegations of human rights violation which the Applicant claims to have been a victim of, brought against the Republic of Senegal, a Member State of the Economic Community of West African States (ECOWAS).

 

REGARDING ADMISSIBILITY OF THE APPLICATION

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.

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

In the case at hand, the Court notes that Karim Meissa Wade has brought before it a claim that he is a victim of the violation of his rights.

Since the application is not anonymous and the applicant has not instituted the same proceedings before another International Court for adjudication, the Honourable Court declares that the application is admissible.

 

REGARDING VIOLATION OF HIS RIGHT TO PARTICIPATE FREELY IN THE PUBLIC AFFAIRS OF HIS COUNTRY

The Court admits that it is apparent from the provisions of Article 13 of the African Charter on Human and Peoples’ Rights, that every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

Every citizen has the right, and is entitled to, without any unreasonable discrimination or restriction:

To participate freely in the government of his country, either directly or through freely chosen representatives;

To access, vote and be voted for during periodic, transparent elections, in a universal and egalitarian suffrage of secret ballot, in expression of the free will of the voters.

In the instant case, Karim Meissa Wade avers that he is a victim of the violation of his right to vote and of his right of eligibility to stand for elections, because according to him, even though he had a voter’s card, and his name had been registered on the electoral roll, by virtue of the extraordinary revision of the electoral list for the purposes of the presidential election of 24 February 2019, the central administrative units of the Ministry of Interior rejected his registration on the ground that the new Article L57 of the Electoral Code first required that every candidate for said presidential election shall first of all be a qualified voter; that he was thus denied his right as a voter and as a person eligible to stand for elections.

As pleaded by the Republic of Senegal however, it is apparent from the facts that it was in compliance with Article L31 of the Electoral Code that his application for registration on the electoral list was rejected; that Article L31 of the said Electoral Code provides that:

“S​hall not be registered on the electoral roll:

(1) persons convicted of crime;

(2) persons sentenced to non-custodial prison terms or to custodial prison terms exceeding one (1) month, with the option of a fine, for any of the following offences – theft, fraud, abuse of trust, drug trafficking, embezzlement and corruption in public office, bribery, undue influence peddling, counterfeiting, and in general terms, any offence liable to imprisonment for a term not less than five (5) years;

(3) persons sentenced to custodial prison terms exceeding three (3) months or to a non-custodial prison term exceeding six (6) months, for offences other than those enumerated in paragraph 2 above, subject to the provisions of Article L30;

(4) persons who have not put in any appearance in court;

(5) unredeemed bankrupt persons whose bankruptcy may have been declared in Senegalese courts, or whose bankruptcy may have been declared outside Senegal but enforceable in Senegal;

(6) persons whose right to vote may have been banned by a criminal court of general law;

(7) adult persons suffering from one form of incapacity or the other.”

Now, Karim Meissa Wade had once been sentenced to a custodial prison term of six (6) months for illicit wealth and to a fine of One Hundred and Thirty-Eight Billion Two Hundred and Thirty-Nine Million Eighty-Six Thousand Three Hundred and Ninety-Six CFA Francs (CFA F 138,239,086,396).

In compliance with the text cited above, the Republic of Senegal refused to register his name on the electoral roll.

It is worthy to recall that in line with its case law, the ECOWAS Court of Justice has already held in its judgment of 13 July 2015 on CDP v. Burkina Faso, that a state may impose restrictions on access to suffrage.

Besides, on the international stage, in Pakas v. Lithuania, the Grand Chamber of the European Court of Human Rights, in its Judgment of 6 January 2011, declared that: “In the Court's view, it is understandable that a State should consider a gross violation of the Constitution or a breach of the constitutional oath to be a particularly serious matter requiring firm action when committed by a person holding that office. (Paragraph 104, Application No. 34932/04).

The Court finds that the refusal to put Karim Meissa Wade’s name on the electoral roll whereas he was aspiring to occupy the highest function in the State, does constitute a restriction upon his right to vote, but such restriction was imposed in consonance with the law, notably Articles 34 and 35 of the Criminal Code and Article L31 of the Electoral Code of Senegal. The law is intended to repress outrightly certain lines of conduct if they should be committed by certain persons invested with public authority, entrusted with public-service responsibilities or in whom an elective public mandate is vested; such denial of the exercise of the right to suffrage is implicitly embedded in various criminal charges which may not have to be expressly pronounced by the judge who decides such measures.

The restriction decided in the case in point is therefore legitimate and necessary.

Hence, the Applicant cannot legitimately claim that the application of the said Electoral Code by Republic of Senegal amounts to human rights violation.

 

REGARDING VIOLATION OF THE RIGHT TO EFFECTIVE REMEDY

Article 14(1) of the International Covenant on Civil and Political Rights provides that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

Acc​ording to Article 2 of the same Covenant: “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (...) (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; ...”.

The Court notes that Article 11(2) of Law No. 2018-476 on the extraordinary revision of the electoral list for the purposes of the Presidential election of 24 February 2019, provides that: “From 3 July 2018, to reclaim his rights, any voter omitted or a victim of a purely technical error of his registration, and in possession of his receipt, shall have fifteen (15) days to report the matter directly or through the CENA or the Presiding Judge in his area of jurisdiction, or through the Head of Diplomatic Mission or Consulate, if he resides outside Senegal”.

In the instant case, it is incontrovertible that the Applicant was resident in Qatar and applied in Kuwait for his name to be registered on the electoral roll at the Diplomatic Mission of Senegal in Kuwait. In compliance with the above-cited law, Karim Meissa Wade should have brought his application before the Head of the Diplomatic Mission in Kuwait to request for the restoration of his name on the electoral roll. By choosing to bring his application before the Tribunal d’Instance Hors Classe (TIHC) of Dakar, Karim Meissa Wade took the wrong judicial step in seeking justice. It was therefore well-founded that the Tribunal d’Instance Hors Classe (TIHC) of Dakar before which he came declared that it had no jurisdiction to adjudicate upon the matter he brought. Thereafter, the appeal he filed against the said order made by the TIHC was dismissed by the Administrative Chamber of the Supreme Court.

The foregoing thus demonstrates that the Applicant exercised the effective remedy available to him. The Republic of Senegal did not therefore violate the Applicant’s right to effective remedy in so far as the text cited above made provision for persons who may have claims in regard to their registration on the electoral roll, to submit them.

 

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,

Declares that it has jurisdiction to adjudicate on the dispute;

Declares that the Application filed by Karim Meissa Wade is admissible; Declares however that the said Application is ill-founded;

Dismisses the Application;

Asks the Applicant to bear the costs.

 

AND THE​ FOLLOWING HEREBY APPEND THEIR SIGNATURES

 

1.  Hon. Justice Gbéri-bè Ouattara                                               Presiding

2.  Hon. Justice Dupe Atoki                                                           Member

3.  Hon. Justice Keikura Bangura                                                   Member

 

Assisted By: Maître Aboubacar Djibo Diakité                                Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 27 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Bangra JA
Moreira-Costa JA
Search summary

 

COURT OF JUSTICE OF THE ECONOMIC COMMUNITY

OF THE WEST AFRICAN STATES (ECOWAS)

HELD IN ABUJA, NIGERIA

On June 28th, 2019 PROCEEDING No ECW/CCJ/APP/27/17

JUDGEMENT No ECW/CCJ/JUD/25/19

 

BETWEEN:

 

SUNDAY CHARLES UGWUABA - Applicant

AND

STATE OF SENEGAL                   Defendant

 

COMPOSITION OF THE PANEL:

Honorable Judge Dupe ATOKI - President

Honorable Judge Keikura BANGURA - Member

Honorable Judge Januária Tavares Silva Moreira COSTA Member/Rapporteur

 

Assisted by:

Athannase Atannon - Deputy Register

 

1. ​REPRESENTATIONS OF THE PARTIES

a) For the Applicant

U L. ABONYI

b) F​or the Defendant

Maitre Papa Moussa Felix Sow

 

2. P​ROCEDURE

By application dated July 10th, 2017, and registered on October 27th, 2017, SUNDAY CHARLES UGWUABA, a Community citizen with Nigerian nationality, ordinarily resident in The Gambia, brought the present action before the ECOWAS Court of Justice against the STATE OF SENEGAL, for violation of the applicant's human rights to free movement of persons, goods and services, guaranteed by the combined effects of Articles 1, 2, 4 and 12 of the African Charter on Human and Peoples' Rights, the Article 3 (2) (d) (iii), Article 4 (g), Article 45 (2), and Article 46 of the ECOWAS Revised Treaty, Article 13 of the Universal Declaration of Human Rights, Article 2 (2) and Article 27 of the Protocol on Free Movement of Persons, Right of Residence and Establishment and the Mini Summit of Heads of State and Government on the Creation of a Borderless ECOWAS, Abuja, 2000. (document 1)

The Defendant State, SENEGAL, regularly cited, on October 21, 2017, came by an application dated November 22, 2017 and registered with the Registry of this Court on November 27, 2017, to present its defense. (document 2)

The applicant, duly notified of the presentation of the defense, on November 29, 2017, presented his reply by an application dated January 29, 2018, registered with the Registry of this Court on the same date. (document 3)

Furthermore, by an application dated 28 March 2018, the applicant made a request for an extension of the deadline to offer his response, having submitted it at the same time and also offered as evidence the oral testimony of the applicant and the visualization of a video clip that he attached. (document 4)

The defendant, after having received the duly translated documents offered by the applicant, came on 11 April 2019, to present the rejoinder as contained in the document (5).

The applicant, duly notified, replied as contained in the document (6).

The parties were heard on a court hearing on May 15, 2019, and the video clip offered by the applicant was reproduced and visualized.

3- ON THE FOU​NDATIONS OF THE APPLICANT’S CLAIMS:

The applicant is a citizen with Nigerian nationality, ordinarily resident in The Gambia. He is an international businessman engaged in cross-border business within ECOWAS, with a particular interest in exporting fish from The Gambia to Nigeria across the borders of Senegal, Mali, Burkina Faso, Republic of Benin and Nigeria.

On 18 March 2016, he departed on an exportation of 156 boxes of smoked fish to Nigeria in 3 lorries, having obtained all the necessary authorizations from the competent authorities.

The trucks include:

a. Iveco Truck with license plate JJJ42XQ, carrying 70 boxes of smoked bonga fish and each box contained 4000 pieces of fish.

b. Mini Bus Mercedes Benz Sprinter with license plate KIA404XS, carrying 30 boxes of smoked bonga fish and each box contained 4000 pieces of the said fish.

c. Mercedes Benz 814 truck with license plate MUS851XG, carrying 56 boxes of the same bonga fish and each box contained 4000 pieces.

When the applicant arrived at the BADIARA border post, he discovered that the defendant had closed its borders with The Gambia and refused the passage of Gambian citizens through its country.

The applicant was convinced that he being a Nigerian citizen and that the trucks carrying his products also have Nigerian registrations, approached the border police to identify himself and also to show them his passport, but to his surprise, the policemen refused to allow his access across borders.

That while making efforts to convince the Senegalese police of the perishable nature of his merchandise, he found that the defendant's police were allowing the passage of persons and goods from selected countries. A Mercedes branded truck with registration number RGB 4269 CF, Guine-Bissau was authorized to cross border by the defendant.

- The applicant waited at that frontier for days, and the days became weeks and months (63 days), believing that the border closure was temporary, until May 20, 2016, when he decided to turn around and return to The Gambia, having waited in vain. Under normal conditions, it takes 30 days to complete the business trip to Nigeria.

The applicant spent his money feeding his three drivers, workers, his helpers and also paid for his and their treatments for scorpion bites, had to find a way to mitigate the losses caused by the defendant by selling the fish in the Gambia.

On 20 May 2016, the applicant, in accordance with the Gambian law, delivered the fish to the Ministry of Health of The Gambia for recertification, but unfortunately they were declared unsuitable for human consumption because of excessive exposure to direct sunlight resulting from the refusal access to entry by the defendant.

That in order to mitigate his losses, the applicant immediately sold the fish to a Mr Ogbonnaya Friday at Tanji Beach in The Gambia on 23 May 2016 at the price of D3000 (three thousand Dalasis per carton), totaling D468,000.00 (four hundred and sixty-eight thousand Dalasis) for the 156 boxes, which is equivalent to $10,636.00 at the exchange rate of D44 to 1USD.

The cost of buying a fish box from his supplier was D19,400 and D3,026,400.00 (three million, twenty-six thousand, four hundred) only for 156 boxes.

That the cost of transportation, transit and feeding is as follows:

a.  Each driver was entitled and was paid $1500 per month and if the $1500 be split into 30 days, it gives $50 per day and if multiplied by 63 days, it gives a sum of $3150 for each driver. The applicant had three trucks and therefore paid $9450 for 3 drivers.

b.  Each worker was entitled and paid $800 per month and if divided the $800 by 30 days, it is a value of $27 per day and if multiplied by 63 days, it gives a sum of $1680 for each helper. The applicant had 3 trucks and therefore paid $5040 for 3 helpers.

c.  The Iveco truck generated a profit of $4,000 per month and if the $4000 is split into 30 days, it gives a value of $133 per day and if multiplied by 63 days, it gives a total of $8400 for this truck.

d.  The Mercedes truck generated a profit of $ 4,000 per month and if the $4000 is split into 30 days, it gives a value of $133 per day and when multiplied by 63 days, it gives a total of $8400 for this truck.

e.  The Mercedes Sprinter truck generated a profit of $2400 per month and if the $ 2400 is split into 30 days, it gives a value of $80 per day and if multiplied by 63 days, it gives a total of $ 5,040 for this truck.

The applicant claims that the total cost of feeding, transportation, transit and the cost of renting trucks is $36,330.

Each carton of smoked fish would be sold in Nigeria in March/April 2016, at ₦260,000.00, which would total ₦40,560,000.00 for the 156 consigned boxes.

The applicant claims that if the sum of ₦2,105,928.00 representing the Naira equivalent of $10,636.00 raised with the resale (at the official exchange rate of ₦198 per 1USD) is deducted from the sum of ₦40,560,000.00, will give a balance of ₦38,454,072.00.

The applicant claims that the money he used for this transaction was a 25% interest loan granted to him by the SKYE BANK based in the Republic of The Gambia.

The applicant also claims that, following the aforementioned facts, he was not possible to repay the loan to the bank, since the goods perished.

That because of his inability to repay the loan, the bank has sued him in the court and he was sentenced to pay the loan, so his two buildings are being put up for sale in The Gambia to pay off the debt.

He also maintained that his company collapsed completely and that his family of six children have been subjected to psychological torture, since four of his children left school because of lack of school fees, and because of all this he suddenly became hypertensive and has been hospitalized constantly since this incident.

The applicant claims that he paid the Levis Uche & Co law firm the sum of ₦5,000,000 (five million naira) only to sue this process.

4- O​N THE APPLICANT'S REQUESTS

The applicant makes the following claims before the Court:

(A) A DECLARATION that the refusal to the applicant's entry into the Republic of Senegal with his lorries loaded with perishable goods en route to Nigeria on 18 March 2016 by the defendant is illegal and violates the provisions of Articles 2 and 12 of the African Charter on Human and Peoples' Rights and Articles 4 (g), the Articles 3 and 27 of the ECOWAS Revised Treaty which guarantee the right to free movement of persons and goods within 90 days without a visa in the territory of the Member States.

(B) AN ORDER obliging the defendant to pay to the applicant the sum of thirty-eight million, four hundred and fifty-four thousand, seventy-two Naira (₦38,454,072.00) only, being this the normal sale price of said goods in Nigeria after deduction of value obtained by the sale of the perished goods.

(C) AN ORDER obliging the defendant to pay the applicant the sum of $19,030, being this the additional cost of feeding and rental of the trucks for an additional period of 33 days.

OR

(D) AN ORDER obliging the defendant to pay the sum of D2,558,400.00 (two million, five hundred and fifty-eight thousand and four hundred dalasis), being this the cost of acquisition of the goods after deduction of the sum of D468,000 raised by the sale of the perished fish and a sum of $36,330 (thirty-six thousand three hundred and thirty dollars), being this the cost of feeding and hiring the trucks for 63 days.

(E) AN ORDER obliging the defendant to pay a sum of ₦5,000,000 (five million Naira) only, the legal fees paid by the applicant for the trial of this case.

(F) AN ORDER granting the applicant a sum of $100,000,000 (one hundred million US dollars) as general and exemplary compensations for psychological trauma, shock and loss of health due to the action of the defendant.

The defendant gathered documents.

5. ON T​HE FOUNDATIONS OF THE DEFENDANT

The Defendant State, that of Senegal, in its defense, claimed that the application should not be admissible since the applicant did not indicate his domicile at the Court of Justice and that the applicant's lawyers did not accept to receive notifications by fax or any other technical means of communication, thus failing to comply with the requirements in the Articles 33 (2) and (3) and 28 (3) of the Rules of Procedure of this Court.

That also in the petition notified on the defendant, the applicant did not attach the document "Legitimation" which the lawyer of the applicant must submit, as required by Article 28 in fine of the Regulation.

That it is such document that allows the Court to know the lawyer or agent responsible for representing the applicant and, on the other hand, to have the real guarantees as to the existence, identity and authenticity of the names, surnames and qualities of the persons;

That the Article 28 of the Rules of Procedure requires the lawyer to prove that he is entitled to practice before a court of a State Member or any other State party of the Treaty.

The Defendant concluded that failure to regularize these formalities means that the application is declared inadmissible in accordance with Article 33 (6) of the Rules of the Court.

AS​ TO THE FACTS, THE DEFENDANT FURTHER ALLEGED:

That due to a crisis in the border between the two countries, which began in February 2016, and resulted in the suspension of road traffic for several weeks, the situation was only normalized with the reopening of the border between Senegal and The Gambia on 24 May 2016.

That the defendant's lorries did not cross the Senegalese border was not due to the closure of the border, but due to the breaking load, which is a measure imposed on the Gambian and foreign carriers wishing to transit their goods through the Senegalese territory, requiring that the products should be decanted in vehicles authorized to continue their journey;

That this regime of interstate transit of goods in the ECOWAS region is governed by Convention A/P4/5/82, establishing an interstate transit regime for goods in the ECOWAS region, as provided for in Article 4 thereof, that the Article 5 et seq. specify the formalities to be complied with in order to be admitted to transit in accordance with the interstate transit regime through the establishment of the TRIE declaration.

That at the material time, The Gambia had not complied with the requirements for the implementation of the Interstate Transit System (TRIE) signed in Cotonou on 29 May 1982;

That the applicant did not meet the requirements of the interstate transit of goods as provided for by the aforementioned Convention, therefore he can not claim any infringement of the right to free movement of persons and goods;

That, contrary to the applicant's assertion, it is not the police who is in charge of interstate traffic, but the Customs services;

That the Community origin of the products must be confirmed by a certificate of origin as specified in the memorandum of the Directorate-General for Customs of 16 January 2017; whereas the certificate of origin, whose specimen is attached, is compulsory for the export of products to an ECOWAS member country; without this certificate of origin, the product can not be exported.

That in the Senegal-Gambia report issued on 15 May 2016 it was reminded by the Senegalese party that "road traffic between Senegal and The Gambia is governed by Senegalese national law (Customs Code) in the absence of the possibility of implementing the mechanism recommended by the ECOWAS Convention in this regard.

That this lack of operation of interstate road transit of goods between the two countries is due to the absence of a national guarantor and of authorized lorries or containers, two of which are necessary for the effectiveness of this regime, in accordance with the provisions of Article 4 of the aforementioned convention.

That the State of Senegal has already signed the Convention on Interstate Transport of Merchandise in the ECOWAS area and should therefore be applied in a specific manner; that even if it refers to more general provisions, including the African Charter on Human Rights, in view of the provisions of article 12, the freedom of movement of persons and goods must respect the national legislation of the State, which was not the case of the applicant.

That the applicant, in support of his application, has attached 13 documents which were not communicated to him (the defendant), and that this constitutes a breach of the adversarial principle and equality of arms, wherefore the documents must be rejected.

6. DEF​ENDANT´S CONCLUSIONS

The defendant concluded that:

a) the petition of the applicant should be declared inadmissible for non-compliance with the provisions of Article 33 of the Court’s Rules of Procedure;

b) should be rejected the documentary evidence submitted by the applicant as it was not communicated to the defendant;

(c) the applicant's claims should be reject due to lack of grounds;

(d) order the applicant to pay the costs.

The defendant gathered documents.

The applicant replied, claiming that on the first page of the petition is clearly stated his address, that he declared his address of service within the jurisdiction and in Abuja where the court has its seat, that he duly attached his certificate of order, which can be found in the Court registry, that the defendant has not shown by evidence that he refused the applicant´s entry because he did not submit the transport of his goods in accordance with the law.

He conclude asking for the present action to be considered well-founded.

The documents presented by the applicant were duly translated and notified on the defendant, who came to present his rejoinder in which he argued that:

- the traffic on both sides of the border between Senegal and The Gambia was blocked due to a border crisis triggered by the Senegalese road transport unions protesting against a new tariff imposed by the Gambian Customs.

- According to Annex 12, the customs office at Bassa pointed out that "(the vehicles) stayed about seven hours at the Bandiara border post. Then they decided to return to Serekunda in The Gambia".

- And for this reason the vehicles carrying smoked fish did not stay on the border, as alleged, from March 18th to May 20th, 2016, but they parked for only seven hours at the border post in Badiarra;

- The annex 9 mentions that the certificate of sanitary discharge was only valid for 14 days counting from 03/17/2016.

The defendant gathered documents.

The applicant replied to the rejoinder and concluded as in the application initiating proceedings.

7. THE QU​ESTIONS TO BE DECIDED

Having been verified the Court´s competence, it should be decided first, on the one hand, whether the application initiating proceedings should be declared inadmissible due to an alleged failure to comply with the provisions of Article 33 (2) and (3) and Article 28 (3) of the Court's Rules of Procedure and rejected the documentary evidence submitted by the applicant, on the ground that they were allegedly not communicated to the defendant.

On the other hand, if those pleas are rejected, to decide whether the facts as claimed by the applicant constitute a breach by the defendant to the fundamental human rights claimed and whether the defendant should be ordered to pay the requested sum to the applicant.

8. ​ON THE ANALYSIS BY THE COURT.

On the jurisdiction of the Court:

The jurisdiction depends on the nature of the question brought to the Court by the applicant, based on the facts claimed by him/her.

In this case, the applicant's petition is based on claims of a series of acts, which, imputed to the defendant, were found to violate his human right to the free movement of persons and goods guaranteed by the African Charter on Human and Peoples' Rights and by the Universal Declaration of Human Rights.

Pursuant to Article 9 (4) of the Supplementary Protocol, which establishes that: "The Court has jurisdiction to determine case of violation of human rights that occur in any Member State."; And of article 10 (d) of the same law where it is stated that: "Can consult the court: ... Individuals on application for relief for violation of their human rights... ", this Court has jurisdiction to hear cases of Human Rights violations occurring in its Member States.

That is a case-law of this Court that its competence can not be questioned when the claimed facts are related to Human Rigths. Cf. the judgments ECW/CCJ/JUD/05/10 of 14th March pronounced on the case ECW/CCJ/APP/07/08 between Hissène Habré and the Republic of Senegal, ECW/CCJ/RUL/032/2010 of 8 November 2010, pronounced in the case ECW/CCJ/APP/05/09 case between Mamadou Tandja and the Republic of Niger; No. ECW/CCJ/RUL/05/11 pronounced in the case ECW/CCJ/APP/03/09 between Private Alimu AKeem, against the Federal Republic of Nigeria).

The present action is based on the violation of legal instruments ratified by ECOWAS Member States, which binds them and imposes on them the duty to respect and protect the rights therein proclaimed.- Cf. Judgment No ECW/CCJ/APP/01/09 pronounced in the Proceeding ECW/CCJ/APP/01/09 on the case Amazou Henri against the Republic of Côte d'Ivoire.

The facts claimed in the application initiating proceedings were considered by the applicant as grounds of violation of his human rights guaranteed by the legal instruments of which the Defendant State is a party, namely the African Charter on Human and Peoples' Rights and the Universal Declaration of Human Rights.

The Article 9 (4) of the Protocol relating to the Court, as amended by the Supplementary Protocol of 2005, provides that the Court has jurisdiction to hear cases of human rights violations occurring in the Member States of the Community.

Article 10 of the same Protocol states in turn that individuals may consult the Court in order to obtain compensation for human rights, provided that the request is not anonymous and that the same case is not pending before another competent international court.

Therefore, the requirements described above are fulfilled, because the request is not anonymous and there is no evidence that the same case is pending in another international court.

Therefore, considering the facts claimed by the applicant as violations of his human rights, this court is then competent to hear the case.

On the qu​estions raised by the defendant:

a)   The plea of inadmissibility of the application initiating proceedings

The defendant went on to allege that the application must not be admissible since it does not comply with the requirements of Article 33 (2) and (3) and Article 28 (3) of the Rules of Procedure of this Court.

The applicant replied clamming that his address was clearly stated on the petition page, and that he declared his place of service within the jurisdiction and in Abuja, where the court has its seat, that he duly attached his certificate of order, which is at the Court registry.

So, in this specific case, the Court does not accept the argument presented by the defendant.

See why,

After examining the application initiating proceedings (see page 9), it was found that it contains the address chosen by the applicant at the seat of this Court.

Moreover, the Article 33 (3) gives the lawyer a possibility, instead of choosing the address at the seat of the Court, to authorize that the notification be sent by fax or by any technical means of communication.

Since the applicant chose his domicile at the seat of this Court, he was not required to comply with paragraph 3 of the aforementioned article.

The Article 28 (3) of the same legal document provides that "A lawyer assisting or representing a party shall deliver a certificate to the clerk of the court stating that he or she is entitled to practice before a court of a Member State or another State party to the Treaty."

In the present case, such requirement is fulfilled in view of the document presented by the representative of applicant and it can be found with the proceedings.

In the light of the foregoing, we consider that the application initiating proceedings is admissible.

b)   On the rejection of the documentary evidence submitted by the applicant

The defendant asserted that the applicant, in order to demonstrate his pleas, offered 13 documents as evidence which were not communicated to him (defendant) and that this constituted a breach of the adversarial principle and equality of arms and therefore the documents must be rejected.

It is well known that the court must observe and enforce the adversarial principle throughout the entire process, and it is unlawful, unless it is manifestly unnecessary, to rule on matters of law or fact, even if it is of non-official knowledge, without the parties being able to comment on them.

As can be seen, the rule of the adversary is a general principle of law, according to which a court can not rule on matters of law or fact, even if it is of non-official knowledge, without being previously given to the parties, the effective possibility to discuss, challenge and value them.

The aim of this principle is to safeguard the procedural parts against surprise decisions and to give them an effective opportunity to actively influence the development and success of the process.

A breach of the adversarial principle results in a procedural nullity if it is capable of influencing decisively the decision of the case.

Pursuant to Article 33 of the Rules of Procedure, the application initiating proceedings contains the offered evidences, in this case, the mentioned documents.

Accordingly, we believe that, if the documentary evidence attached to the application initiating proceedings were not delivered to the defendant, that constitutes a mere irregularity, liable of being remedied, since those documents were lodged at the Registry of this Court, thus accessible to the defendant, that could have requested or consulted them.

Moreover, such an irregularity did not hinder the defense of the defendant, since the defendant did not plead in that regard, having lodged its defense within the legal deadline, challenging the facts claimed by the applicant.

In this sense, we understand that it is without ground the demand of the defendant that the court rejects the documents offered with the application initiating proceedings, as evidence, because in the act of the citation they were not sent to him, when he could have raised an incident of nullity of the citation, requiring the repetition of the act.

In fact, it is what he came to do at the court hearing held on March 5th, 2019, when he requested the translation of the aforementioned documents, which was done and permitted him to present the rejoinder, as found in the document (5) .

Therefore, this claim of the defendant is also dismissed.

 

ON​ THE APPLICANT'S DEMANDS:

c)   On the claimed infringement of the right to free movement of persons, goods and services

The applicant claimed that due to the fact that the defendant prevented his three lorries carrying fish from entering the defendant´s territory by closing its border, it violated Articles 1, 2, 4 and 12 of the African Charter on Human and Peoples' Rights; Article 3 (2) (d) (iii), Article 4 (g), Article 45 (2), Article 46 of the ECOWAS Revised Treaty; article 13 of the Universal Declaration of Human Rights, 1948; (2) and Article 27 on Free Movement of Persons, Right of Residence and Establishment and the Mini Summit of Heads of State and Government on the creation of a Borderless ECOWAS, Abuja, 2000.

In contrast, the defendant argued that the applicant's lorries did not cross the Senegalese border because of the breaking load, since, at the material time, The Gambia had not complied with the requirements for implementing the Interstate Road Transit regime (TRIE), signed in Cotonou on 29 May 1982; that the applicant did not meet the requirements for interstate transit as provided in Articles 4 and 5 et seq. of the Convention A/P4/5/82, which establishes the regime for interstate transit of goods in the ECOWAS region, therefore the applicant can not claim any infringement of the right to free movement of persons and goods.

Analyzing, One of the aspects taken into account in the aforementioned Convention was the need to introduce a transit system to facilitate the transport of goods between the territories of ECOWAS Member States.

Thus, the Article 1 (3) of the Convention defines state road transit as being "a regime that allows the transportation of goods by road from one Customs Office in a Member State to another Customs Office in another Member State through one or more Member States free of duties, taxes and restrictions while in transit. Such goods shall be accompanied with a set of customs documents and shall not be off-loaded or transferred while in transit."

Articles 4, 5 et seq. lay down the formalities required for nationals of the Member States to benefit from the exemptions provided for therein.

However, in the event of non-compliance, the Article 29 (1) of the Convention provides that "When an infringement is established in the course of and at the time of an Inter-State Road Transit Operation in a Member State, the duties, taxes and fines that may be incurred shall be collected by the Member State in conformity with the laws and regulations in force in each Member State."

It should be pointed out that the defendant did not specify the specific requirements laid down in the cited Articles 4 and 5 that the applicant failed to fulfill, but rather merely claimed, as a rule of thumb, that the applicant did not comply with such Articles.

And furthermore, the following question arises:

In the event of a breach of the requirements laid down in that Convention by the applicant, was it for the defendant to prevent the applicant from entering its territory by closing its border with The Gambia?

The answer is negative, since, as aforementioned, the Article 29 states that in the event of non-compliance, the duties, taxes and fines which may be incurred shall be collected by the Member State in accordance with the laws and regulations, in force in each State.

The defendant did not claim that the applicant did not comply with a duty or refused to pay any tax or fine that was determined to him by the defendant because of the alleged breach of the Convention.

The defendant was categorical in stating that the applicant did not meet the requirements under the framework for interstate transit of goods as provided in Articles 4 and 5 et seq. of the Convention A/P4/5/82.

It was incumbent on the defendant to specify which requirements under the framework of interstate transit of goods, as provided fin Articles 4 and 5 et seq. of the Convention A/P4/5/82, that the applicant did not comply with, in order to be able to prove them.

Therefore, there are no doubt that based on the ground that those facts were hampering to the right claimed by the applicant, the defendant would have to plead and prove, because the burden of proof lays on him.

By the way, the Court wrote in teh Judgment ECW/CCJ/JUD/01/10 (in CCJLR 2010, p. 12 par.35) in the case of Daouda Garba versus Republic of Benin: ”it is of general rule in law that in the course of a trial the party making the allegations must prove it. The constitution and demonstration of the evidence therefore belongs to the concerned parties. They must use all the legal means and provide evidence to support their claims. Such evidence must be convincing to establish a connection between them and the claimed facts… ”

And this the Defendant failed to do considering that, he did no claim any fact nor did he present any evidence.

The defendant also claimed that The Gambia had not complied with the requirements for the implementation of the Interstate Transit System (TRIE), signed in Cotonou on 29th May 1982. And that is why it is the West African Economic and Monetary Union customs code that applies, as well as the code of the Member States that are oppose to it.

This argument is not appropriate either, since, as the defendant admitted, the border post was in fact closed.

It r​emains to be ascertained if there is infringement of the right to free movement of persons, goods and services

The right to free movement is provided for in several international and regional instruments for the protection of human rights, namely, the Article 4 of the Universal Declaration of Human and Citizen Rights of 1789, the Article 13 of the Universal Declaration of Human Rights of 1948, the Article 12, 2 of the International Covenant on Civil and Political Rights of 1966 and the Article 12 of the African Charter on Human and Peoples' Rights of 1981.

The Article 13 of the Universal Declaration of Human Rights provides that: "(1) Everyone has the right to freedom of movement and residence within the borders of each State.

(2) Everyone has the right to leave any country, including his own, and to return to his country."

The Article 12 of the African Charter on Human and Peoples' Rights, establishes that: 1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions provided for in the law, necessary for the protection of national security, law and order, public health or morality. "(Underlined and Bold are ours)

In the same vein, the Article 12 of the International Covenant on Civil and Political Rights stipulates that: "(2) Everyone shall be free to leave any country, including his own. (3)The above-mentioned rights shall not be subject to any restrictions except when they are provided in the law and are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant." (Bold is ours)

Article 1 (h) of ECOWAS Supplementary Protocol A/SP1/12/01, on Democracy and Good Governance, determines that: "The rights set out in the African Charter on Human and People’s Rights and other international instruments shall be guaranteed in each of the ECOWAS Member States; each individual or organisation shall be free to have recourse to the common or civil law courts, a court of special jurisdiction, or any other national institution established within the framework of an international instrument on Human Rights, to ensure the protection of his/her rights. In the absence of a court of special jurisdiction, the present Supplementary Protocol shall be regarded as giving the necessary powers to common or civil law judicial bodies."

In addition to the above provisions, it should be noted that one of the fundamental ideas of ECOWAS, of which the Defendant State is a member, is that of "a borderless ECOWAS", wherefore the management of immigration and borders is deeply rooted in the overall raison d'être of the Community.

The ECOWAS, anchored in the 1975 Treaty, with the aim of progressively strengthening cooperation between Member States through the free movement of goods, capital and people, and thus helping to consolidate the peace, stability and security of the region, adopted the Protocol on the Free Movement of Persons, Residence and Establishment (1979), which was later expanded by four supplementary protocols.

The aforementioned Protocol, the ECOWAS Revised Treaty of 1993 and the Protocol on the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security (1999), form the basis of the legal framework for the management of immigration and the borders within ECOWAS.

Thus, the ECOWAS Revised Treaty (1993) provides that "abolition, among Member States, of customs duties levied on imports and exports, and the abolition, among Member States, of non-tariff barriers in order to establish a free trade area at the Community level;” (Article 3)

- Orders the States to “maintain periodic and regular consultations between national border administration authorities”; (Article 58)

-  Grants that “Citizens of the Community shall have the right of entry, residence and establishment and Member States undertake to recognise these rights of Community citizens in their territories in accordance with the provisions of the Protocols relating thereto”; (Article 59)

- Calls on the Member States to “undertake to adopt all appropriate measures to ensure that Community citizens enjoy fully the rights” aforementioned. (Article 59)

-  Requests that “Member States undertake to adopt, at national level, all measures necessary for the effective implementation of the provisions” aforementioned; (Article 59)

On the same ground, the Protocol A/P.1/5/79 on Free Movement of Persons, Residence and Establishment (1979):

- Establishes the right of citizens to enter, reside and establish in the territory of the Member States; (Article 2 (1))

- Establishes an approach and three phases over 15 years of implementation of (I) the right of entry and abolition of visas, (II) of residence (III), and of establishment; (Article 2)

- Establishes the conditions for the right of entry into the territory of the Member States as long as is in possession of a valid travel document and an international health certificate; (Article 3 (1))

-  Reserves to Member States the right to refuse admission to their territory of Community citizens considered inadmissible immigrants under its national laws; (Article 4)

In the present proceedings, the defendant admitted that it did not allow the applicant and his lorries transporting dried fish to enter its territory by closing its frontier with the Gambia.

It came later, in the rejoinder, to justify that the traffic on both sides of the border between Senegal and The Gambia was blocked due to a border crisis triggered by the Senegalese road transport unions protesting against a new tariff imposed by the Gambian Customs.

As can be seen In accordance with the Articles 12 of the African Charter on Human and Peoples' Rights and of the International Covenant on Civil and Political Rights, the right to freedom of movement of persons, goods and services can only be subject to restrictions laid down by the law which are necessary to protect national security, public order, public health or morality, considering that the latter legislation adds also the restriction of the mentioned right as regards the protection of other rights and freedoms of third parties, which are compatible with the other rights recognized in the aforementioned Covenant.

Such restrictions were not claimed by the defendant, it pleaded only on the aforementioned pleas in law which the Court does not uphold to.

However, the applicant added to the proceedings:

-  Four declarations (see annexes 2 to 5) issued on 15th March 2016 by the High Commission of Nigeria in Banjul, The Gambia, addressed to all customs and immigration agencies at the various border posts, to the Director-General of Customs in Dakar, Senegal, concerning the applicant's lorries, which state that the aforementioned entity "... therefore calls for the assistance of all security agencies at the various border posts en route to Nigeria to ensure smooth passage..."

-  Three certificates of food safety and quality control (see Annexes 6 to 8) dated 17 March 2016 issued by The Gambian entities concerning products transported on the applicant's lorries, which state that "The products are not, to the present state of knowledge, harmful to human health when used for the intended purpose."

Therefore, the aforementioned documents show that the boxes containing smoked fish transported in the applicant‘s 3 lorries did not present any threat to the national security, public order, health or public morality.

Accordingly, this Court considers that the conduct of the defendant's agents, by preventing the applicant from entering its national territory, by not being subject to the exceptions provided for in Article 12 (2), since they were not even claimed by the defendant, then constitutes a violation of the right of the applicant to free movement of persons, goods and services guaranteed by Articles 13 of the Universal Declaration of Human Rights, 12 of the African Charter on Human and Peoples' Rights, Articles 3 and 59 of (ECOWAS Revised Treaty (1993) and Article 2 (1) of the Protocol A/P.1/5/79 on Free Movement of Persons, Residence and Establishment (1979).

The applicant intends, by the present action, to establish the civil liability of the Defendant State for the damages he claims as a result of the unlawful conduct of its agents.

It must therefore be ascertained whether the defendant State is to be responsible for the acts of its servants.

The defendant State, as we have seen, is bound not only to respect the rights and freedoms enshrined in the conventions to which it is a party, as well as to guarantee the free and full exercise of such rights (obligations of respect and obligations of guarantee).

That is, the State can not perform any act that may violate guaranteed human rights, but must still create all necessary means to prevent, investigate and even punish any violation, public or private, of fundamental human rights, showing the objective facet of such rights. (cf. Carvalho Ramos, in Responsabilidade Internacional por violação de direitos humanos: seus elementos, a reparação devida e sanções possíveis: teoria e prática do direito internacional; renovar, 2004 pag. 41."

This has been the position of this Court in several Judgments, in which it has emphasized, in the area of human rights protection, the responsibility of Member States for non- compliance with obligations arising from international treaties or conventions signed and ratified by them. - See Judgment ECW / CCCJ / Rul / 03/2010, delivered in the case Peter David versus Ambassador Ralph Uwechue, (in CCJLR 2010 pag. 224 para. 41 to 47, cited in the Judgment ECW/CCJ/RUL/07/2010 pronounced in SERAP versus President of the Federal Republic of Nigeria & others. (CCJLR 2010 to page 252, para.72) -.

In this case, it remains to be ascertained whether are fulfilled the assumptions, which determine the international responsibility of the Defendant State, namely the unlawful act (the violation of the applicant's human rights guaranteed by the conventions) - the imputability of the unlawful act to agents of the State that violates the international law, binding the State, the causal link between the unlawful act and the damages suffered by the applicant.

First, it must be observed that the general principle of proof imposes the burden of proof on the party making the claims. It is true that this rule is reversed when there is a legal presumption, exemption or release of the burden of proof, situations in which such burden happens to fall on the opposite party.

Thus, in an instance where the party to whom the burden of proof is to be imposed complies with it, such party shall enjoy the benefit of the presumption and, as such, it will be for the counterpart to counteract the evidence produced.

In the present case, there is no doubt that the burden of proof lies with the applicant, and it is for him to prove the facts which he has claimed as constituting the right which he is pleading for.

It is proved that, on the 18th of March 2016, in breach of the aforementioned Conventions, the agents of the defendant closed their borders with The Gambia and refused to allow the entry of the applicant’s three trucks carrying fish to Nigeria,preventing him from crossing the border between The Gambia and Senegal, without any justifiable excuse for the violation of his right to free movement of persons, goods and services, guaranteed by the aforementioned conventions, making such action to be internationally illicit - therefore the first two presuppositions above mentioned are thus fulfilled - the unlawful act attributable to the defendant´s agents)

O​n the claimed damages:

The applicant claimed to have suffered pecuniary and moral damages, the compensation of which he petitioned.

In view of the documentary evidence provided, it resulted proved only that:

- On March 18, 2016, the applicant departed on a exportation of 156 boxes of smoked fish to Nigeria in 3 trucks.

-  When the applicant arrived at the BADIARA border post he discovered that the defendant had closed its borders with The Gambia and refused the entry and passage of Gambian citizens through its country.

- The applicant's lorries remained for seven hours at the Bandiara border post;

- For the issuing of the three food safety and quality control certificates dated 17 March 2016 issued by the Gambian entities, the applicant paid the sums of D1.000.00, D750.00, D750.00 (see Annexes 6 to 8, respectively)

- On 20th May 2016, the applicant, in accordance with the Gambian law, delivered the fish to the Ministry of Health of The Gambia for recertification but was certified unsuitable for human consumption due to excessive exposure to direct sunlight. (See Annex 15)

- The applicant sold the fish to a Mr. Ogbonnaya Friday at Tanji Beach in The Gambia on 23rd May 2016 at a feed of D3000 (three thousand Dalasis per box) totaling D468,000.00 (four hundred and sixty-eight thousand Dalasis) for the 156 boxes, (See annex 23).

- The cost of buying a fish box from his supplier was D19,400 and D3,026,400.00 (three million, twenty-six thousand, four hundred) only for 156 boxes. (See Annex 18)

-The applicant paid fees to the lawyers, to initiate this action in the amount of 5,000,000 Naira (See Annex 19)

It was not proved:

- That the applicant waited at that frontier for days, and the days became weeks and months (63 days), believing that the border closure was temporary, until May 20, 2016, when he decided to turn around and return to The Gambia.

-  That the applicant claims that the money he used for this transaction was a 25% interest loan granted to him by the SKYE BANK based in the Republic of The Gambia.

- That after the aforementioned facts, the applicant was not able to repay the loan to the bank, since the goods got perished.

- That because of his inability to repay the loan, the bank has sued him in the court and he was sentenced to pay the loan, so his two buildings are being put up for sale in The Gambia to pay off the debt.

- That his company has completely collapsed;

- That his family, comprised of six children, was subjected to psychological torture, as four of his children left school for lack of paying school fees,

-  That the applicant has suddenly become hypertensive and has been hospitalized constantly since this incident.

Therefore, from the prove presented, it was concluded that, after the recertification result, which considered the merchandise unfit for human consumption, in 20th May 2016, the applicant decided to sell it to a Mr. Ogbonnaya Friday in Tanji Beach, The Gambia, on May 23, 2016 at a feed of D3000 (three thousand Dalasis per box) totaling D468,000.00 (four hundred and sixty-eight thousand Dalasis) for the 156 boxes, (See Annex 23); That, in this way, he suffered pecuniary damages (emergent damages) in the sum of D2,558,400.00 (two million, five hundred fifty-eight thousand, four hundred dalasis) as a result of the difference between the cost of acquisition of the merchandise and the sale price of the perished fish.

With regards to the non-material damage claimed, the applicant has not presented any evidence.

It remains to be examined whether there is a causal link between the damage and the unlawful act attributed to the defendant’s agents, that is, if the conduct of the defendant’s agents was capable of producing deterioration in the goods carried by the applicant, as he claims to be.

As it is proven by the factual basis, the applicant was carrying 156 boxes of smoked fish in three lorries to Nigeria on a 30 days journey:

However, having found the border closed, as he asserted, even though he did not present any evidence that proofs his statement, he decided to wait there for it to open during 63 days, when he decided to turn around and return to The Gambia where the goods came to be re-certified as unfit for consumption.

In this case, it remains to be ascertained whether the closure of the border (unlawful act) was the appropriate cause for the production of the damage.

According to the legal theory of proper causality, in order for a fact to be the caused of a damage, it is not necessary that on its own, without the collaboration of others, it causes the damage, but it must be condition of the damage or one of the conditions of the damage, provided that the fact is objectively appropriate to the production of that damage (See Antunes Varela in "das Obrigações em Geral Vol. I. 2ª Ed. 754 e ss. Almeida e Costa in “Direito das Obrigações” 5ª ed., 634 e ss e Galvão Telles, in “Direito das Obrigações” 6ª ed. 408).

According to this theoretical construction it can not be abstracted from the factual process that, in particular, it led to the damage.

In this case, the applicant claimed that on 18 March 2016 the defendants' agents closed the border by not allowing him to pass with his three lorries loaded with smoked fish, and that he waited on that frontier for 63 days, believing that the closure was temporary, until, on 20 May, when he decided to turn around and return to The Gambia.

It can not be taken as proved the applicant´s stay at the border for 63 days, since he did not present any evidence.

However, even if the applicant would have proved such fact, it could still be concluded that if he could have been diligent and adopted the behavior of an average man or of a "bonus pater family" (a good family father), the applicant could have avoided the damage, by having turned around and gone back to The Gambia on a timely manner, for he knew the perishable nature of the commodity he carried.

Therefore, it is not acceptable that the applicant remained at the frontier for 63 days as he claimed, exposing the goods he was carrying to the conditions he describes, thus contributing to its deterioration, and then impute the damage to the Defendant State.

The closure of the frontier by itself alone did not leave the applicant unable to conserve or preserve his merchandise, therefore it can not be concluded that such fact - closure of the frontier - was an appropriate cause to produce the pecuniary damage claimed by the applicant.

Thereby, in the absence of verification of this assumption (the causal link) of the civil liability, the applicant's claim related to the compensatory request is thus dismissed.

9. ON​ THE DECISION Therefore, the Court decides:

To declare that the Defendant, the State REPUBLIC OF SENEGAL violated the human rights of the applicant, SUNDAY CHARLES UGWUABA, to free movement of persons, goods and services.

To Declare that the causal link between the damage claimed by the applicant and the closure of the border has not been established.

And as a result,

To Judge as unfounded the compensatory claims made by the applicant.

O​n the Legal expenses:

The costs shall be borne by the applicant, in accordance with Article 66 (2) of the Rules of Procedure of the Court of Justice.

This judgment was declared and pronounced in a public court hearing held in Abuja by the Court of Justice of the Community on 26th of June 2019.

 

By the Judges:

Honorable Judge Dupe ATOKI - President

Honorable Judge Keikura BANGURA - Member

Honorable Judge Januária Tavares Silva Moreira COSTA Member/Rapporteur

Athannase Atannon - Deputy 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