Moreira-Costa 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/ 44 of 2016
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Moreira-Costa JA
Search summary

 

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

HOLDEN AT ABUJA, NIGERIA

ON FRIDAY, THE 11TH DAY OF OCTOBER 2019 SUIT NO: ECW/CCJ/APP/44/2016

JUDGMENT NO: ECW/CCJ/JUD/29/19

BETWEEN:

PRIVATE BARNABAS ELI                                                       APPLICANT

AND

THE FEDERAL REPUBLIC OF NIGERIA                                    RESPONDENT


COMPOSITION OF THE COURT


Hon Justice Gberi-Be OUATTARA                                    Presiding Judge

Hon. Justice Dupe ATOKI                                                 Judge Rapporteur

Hon Justice Januaria COSTA                                             Member

 

Assisted by:

Tony ANENE-MAIDOH                                                      Chief Registrar

 


REPRESENTATION TO PARTIES


Sola Egbeyinka, Esq. LLM                                                  - For Applicant

The Federal Government of Nigeria was not represented.


JUDGMENT


This is the judgment of the Court, which was rendered in default in open Court


PARTIES


1.  Private Barnabas Eli (hereinafter referred to as “the Applicant) is a citizen of the Federal Republic of Nigeria by birth and is therefore a community citizen of the Economic Community of West African States (ECOWAS).

2.  The Application was filed against the Federal Republic of Nigeria (hereinafter referred to as “the Respondent State”), a member State of the ECOWAS and signatory to the ECOWAS Treaty.


SUMMAR​Y OF FACTS


3.  The Applicant avers that he was recruited into the Nigerian Army, a military institution of the Respondent State on 14 August 2009. Subsequently, he was commissioned as a soldier of the Nigerian Army, following a successful recruitment exercise, on 14 January 2010 and issued with Army Number 09NA/64/4667.

4.  The Applicant states that after he was commissioned as a soldier, he was drafted to 1 Battalion of the Nigerian Army. He states that sometime in January 2011, he was detailed to participate in a National Assignment known as Special Task Force (STF), Operation Save Haven in Jos Plateau State and he resumed at the STF headquarters in Jos. He states that while he was on the said national assignment, he was posted to Kassa checkpoint sector 7.

5.  The Applicant further states that on 6 April 2012, while on duty at the Kassa checkpoint, he suddenly developed a stomach upset, which became uncontrollable. He then went to the nearest chemist to get medication. He states that upon his return, he discovered that unknown persons had burgled his residence and a rifle allocated to him, belonging to the Nigerian Army was stolen.

6.  He then lodged a complaint with his after which he was led to the Barkin Ladi Police Station where was detained. He was later moved to the 3 Division of the Nigerian Army in Jos, which had jurisdiction over the matter. On 9 December 2013, he was arraigned before a Military Court Martial and sentenced to a term of two years imprisonment.

7.  The Applicant alleges that he was first detained at the Provost Group Guardroom in Jos and thereafter transferred to Jos Main Prison where he served the remaining part of his sentence. He states that on 8 December 2015, he was released from prison after having served the two-year prison term.

8.  The Applicant alleges that the Confirming Authority of the Nigerian Army till date has not confirmed the sentence of a term of two years passed on him by the Military Court Martial, as provided for under Section 148 of the Armed Forces Act.

9.  The Applicant further states that since his release from prison, he has not been reinstated into the Nigerian Army, despite concerted efforts and letters through his Counsel to the Nigerian Army requesting his reinstatement. The Applicant alleges that the GOC only responded to one of the letters, dated 27 August 2012, via a letter dated 4 September 2014, wherein he declined to accede to the Applicant’s formal request for a release on the grounds that the sentence of the Applicant was still running. The last letter by his Counsel, dated 24 March 2016, was written to the Chief of Army Staff, wherein the Counsel requested the Nigerian Army to review the case of the Applicant with a view to readmitting him into the Nigerian Army and that all arrears of salaries and other entitlements should be paid to him. The Applicant alleges that Chief of Army Staff did not respond to the said letter neither was action taken in respect of the requests.

10. The Applicant states that following his irregular and unlawful dismissal from the Nigerian Army, he has become an idle young man residing at Bandawa Lugere Lamurde Local Government Area of Adamawa State with no reasonable and feasible means of sustenance.

Alleged Violations

11.  The Applicant alleges the following violations of his rights:

i.     That while in the custody of the Respondent State, he was physically, psychologically, mentally and emotionally traumatized, in violation of Article 5 of the African Charter on Human and Peoples’ Rights (the Charter).

ii.     That the Respondent State failed to substantiate the false and baseless allegation of missing rifle made against him before the General Court Martial till date.

iii.     That the Respondent State failed and willfully refused to confirm the spurious findings of the General Court Martial till date.

iv.     That the Respondent State violated the following fundamental human rights under Articles 1, 2, 3, 4, 5, 6, 7 and 15 of the Charter; Articles 1, 2, 4, 5,6,7,9 and 23 of the Universal Declaration of Human Rights (UDHR); Articles 5 and 6 of the International Covenant on Economic Social and Cultural Rights; Principles 1, 5, 6, 8,32, 35, 36, 37 and 38 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

RELIEF​S SOUGHT BY THE APPLICANT.

12. The Applicant prays the Court to order the following reliefs:

a.  Declaration that the arrest and subsequent detention of the Applicant at the Barkin Ladi Station in Plateau State on 7 April 2012, at the instance of the Respondent State without being duly informed of the nature and reason for his arrest is illegal, unlawful, null and void as same is contrary to the provisions of Article 7 of the African Charter on Human and Peoples’ Rights, Principles 10 and 12 of the Body of Principles for the Protection of all Persons under any form of Detention or imprisonment, Section 35 (3) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration Act) As Amended.

b.  A Declaration that the continuous detention of the Applicant at the Special Task Force Guard Room in Jos, Plateau State from 8 April 2012 to November 2013 without being charged before any Court of Competent Jurisdiction in Nigeria for a written offence, is contrary to the provision of Section 35 (4), (5), (6) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) Third Alteration Act, Principle 11 of the Body of Principle for the Protection of all Persons under Any Form of Detention or Imprisonment and Principle 36 of the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment.

c.  A Declaration that the arraignment of the Applicant before the General Court Martial on 4 December 2013 and the subsequent sentence of a term of two years imprisonment passed on the Applicant thereafter on 9 December 2013 without the confirmation of the designated Nigerian Army Authority is illegal, ultra vires, null and void, as same contravenes the provisions of Article 6 of the African Charter on Human and People Rights, Principle 2 of the Body of Principles for the Protection of all Persons under Any form of Detention or Imprisonment, Principles 3, 4, 9 and 39 of the Body of Principles of the Protection of All Persons under any form of Detention or imprisonment.

d.  An Order of this Honourable Court compelling the Respondent State, its agents, assigns, privies, servants and by whatsoever name called to pay over to the Applicant, the sum of N 10 000, 000.00 (Ten Million Naira) only as general damages for the psychological, physical, mental, inhuman and degrading treatment the Applicant was subjected to following his illegal arrest and subsequent detention at various military formations and Police cell at the instance of the Respondent State.

e.  An Order of this Honourable Court compelling the Respondent State, its agents, assigns, privies, servants and by whatsoever name called to immediately reinstate the Applicant into the Nigerian Army as a soldier on the rank his colleagues with whom he was commissioned into the Nigerian Army as soldiers on the same date are presently occupying.

f.   An Order of this Honourable Court compelling the Respondent State, its agents, assigns, privies, servants and by whatsoever name called to pay over to the Applicant, his monthly salaries from the month of March 2015 in the sum of N45, 000.00 (Forty Five Thousand Naira) only, as operation allowance being a Soldier that participated in the Special Task Force Federal Government National Assignment from the month of April 2015 to the date the Judgment of this Honourable Court is enforced.

g.  An Order of this Honourable Court by way of a perpetual injunction restraining the Respondent State, its agents, assigns, privies and by whatsoever name called, from intimidating, harassing, arresting or incarcerating the Applicant in respect of this suit as presently constituted.

h.  And for such or further orders as this Honourable Court may deem fit and proper to make in the circumstance.

APPLIC​ATION FOR A DEFAULT JUDGMENT

13. The Respondent State did not file a Defence to the Application. Consequently, by Motion on Notice dated 10 October 2018, the Applicant prayed the Court to enter a default judgment for the Applicant against the Respondent State, for the failure of the latter to file a Defence to the Application and prays the Court to grant the following:

i.     An Order entering a default judgment in this suit in favour of the Applicant, against the Respondent State for failure to file a defence to the suit;

ii.     An Order deeming that a default judgment has been entered in favour of the Applicant in this suit;

iii.     And for such order or further orders as this Court may deem fit and proper to make in this circumstance.”

14. The grounds adduced by the Applicant in support of the prayers are as follows:

i.     That the Applicant filed the originating process in this suit on 14 December 2016 at the Registry of the Court;

ii.     That the Respondent State was duly served with the Applicant’s originating process by the Registry of the Court;

iii.     That the time stipulated by the Rules of the Court for the Respondent State to file a Defence has since elapsed;

iv.     That it is almost two years that the Respondent State received the originating process.

ISSUES FOR DETERMINATION

The court has formulated the following issues for determination

i.     Whether the Application for a default judgment satisfies the requirements of Article 90 (4) of the Rules of the Community Court of Justice ECOWAS (hereinafter referred to as “the Rules”).

ii.     Whether the sentence of the Applicant to two years imprisonment following his conviction by the military court martial without the required confirmation by the appropriate authority as provided in Section 148 of the Armed Forces Act is unlawful and therefore void and contrary to section 6 of the African Charter.

iii.     Whether the allegation of violation of other rights of the Applicant as claimed has been proved.

iv.     Whether in the light of the facts and evidence adduced, the Applicant is entitled to the reliefs sought.


A​NALYSIS OF THE COURT


ISSUE​ NO 1

Whether the Application for a default judgment satisfies the requirements of Article 90 (4) of the Rules of the Community Court of Justice ECOWAS.

15. The initiating application in the present case was filed at the Registry of the Court on the 14th of December 2016. On the 16th of December 2016, the Defendant was duly served with the initiating application. Under the Rules of Procedure of the Court, the Defendant is obliged to lodge its defence or enter appearance within one month of service on him of the initiating application. The Defendant has however failed, refused and or neglected to put up a defence.

16. In compliance with Article 90 of the Rules, the Plaintiff on the 18th of October, 2019 filed at the Registry of the Court its application for default judgment. Again, the Defendant though duly served with the application on the 24th October 2018 failed to put up a response.

17. In the absence of compliance by the Defendant with the procedure, the Court is entitled to reach a default decision. In so doing, the Court will be guided by the provisions of the Rules to determine whether or not the case of the Plaintiff meets the criteria for judgment to be entered in default.

18. Article 35 of the Rules provides that: Within one month after service on him of the Application, the defendant shall lodge a defence…”

19. Article 90 (1) of the Rules provides: “If a defendant on whom an application initiating proceedings has been duly served fails to lodge a defence to the application in the proper form within the time prescribed, the applicant may apply for judgment in default.”

20. Article 90 (4) further provides that: “Before giving judgment by default, the Court shall, after considering the circumstances of case, consider: Whether the initiating application initiating the proceedings is admissible; whether the appropriate formalities have been complied with; and whether the application appears well founded”.

21. In Chude Mba v The Republic of Ghana, Judgment N°ECW/CCJ/JUD/10/13, the Court spelt out conditions to be satisfied for the Court to grant an application for default judgment in the following words:

“Pu​rsuant to the provisions of Article 90(4), this Court in deciding whether or not to grant the application for default judgment has to consider the issue of admissibility of the action, the fulfilment of the procedural requirements as well as the sufficiency of facts adduced by the applicant to warrant the granting of the default judgment”.

22. In the same vein, in Mohammed El Tayibbah v. Republic of Sierra Leone, ECW/CCJ/JUD/ 11/15 the Court found that in determining an application for default judgment, it must consider issues of competence, admissibility and proof before determining the case on its merits.

23. The Court will now analyse the facts of the case to determine compliance with these requirement.

On​ admissibility of the Application

24. In determining this requirement, the court must establish that the subject matter is within the competence of the court, that the parties can access the court and that they have the requisite standing.

i.  Jurisdiction

25. Jurisdiction is the authority the Court has to decide matters litigated before it. It serves as the lifeline and the only channel that rationalizes any adjudication. Thus where a Court has no jurisdiction, its proceedings however well conducted remain a nullity. Article 9 of the 2005 Supplementary Protocol of the Court stipulates the jurisdiction of the Court with Article 9 (4) of the said 2005 Protocol being the most relevant and it provides:

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

26. This Court has in its flourishing jurisprudence held that the mere allegation that there has been a violation of human rights in the territory of a member state is sufficient to justify its jurisdiction on the dispute, surely without any prejudice to the substance and merits of the complaint which has to be determined only after the parties have been given the opportunity to present their case, with full guarantees of fair trial. See SERAP v. FRN & 4 Others ECW/CCJ/JUD/16/14.

27. Also in Kareem Meissa Wade v. Republic Of Senegal, ECW/CCJ/JUD/19/13, 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.” See also Bakare Sarre v Mali (2011) CCJELR pg. 57 and Dr. George S. Boley v The Republic Of Liberia & 3 Ors. ECW/CCJ/JUD/24/19.

28. The claim of the Applicant is premised on a plethora of allegation of violation of his rights as listed in paragraph 13 iv supra. In line with the above jurisprudence of the Court vis-à-vis the facts of the present application, it is our view, that the Court has the requisite competence to determine the application submitted by the Plaintiff same been premised on allegation of human rights contained in his initiating documents.

ii. Access to court

29. In determining persons who can access the Court, Article 10 (d) 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.

30. The application is obviously not anonymous and the Court has no record that the same matter has been instituted before another International Court for adjudication

31. In light of these considerations, the Court finds that the Application has met the requirements for admissibility and so declares.

On​ whether the application has met the appropriate formalities.

32. Article 35 of the Rules provide that “Within one month after service on him of the application, the defendant shall lodge a defense…”

33. The Court notes that in the settlement of a dispute before any domestic or international court, there are certain formalities that must be complied with at the commencement of a suit. One of such requires the initiating party to serve all processes on the party against whom such a suit is instituted. Article 34 of the Rules, provides that “an application shall be served on the defendant”. The purpose of service of a process is to give appropriate notice to the other party and adequate time for response to the allegations. It also enables the judicial body to assert its jurisdiction over the case. In this vein the Court in the case of Chude Mba supra stated that,

“​the first formality that must be observed throughout the process has to do with the adversary principle which aims at notifying the defendant that an application has been filed against him/her at the court and offering him/her the opportunity to defend”

34. In the instant case, the initiating application was filed at the Registry of the Court on the 14th of December 2016. On the 16th of December 2016, the Defendant was duly served with the initiating application. Having failed to file a response the Applicant filed an Application for Default Judgment, which was equally served on the Respondent. The Court therefore holds that all appropriate formalities have been complied with.

On​ whether the Application is well founded

35. Regarding this requirement, the Court must consider the sufficiency of the facts adduced by the Applicant to ground the default judgment. To ground a well- founded application, the Court must come to a conclusion that the facts are sufficient to support the claims against the Respondent State. This principle was reflected in the case of Vision Kam Jay Investment Limited v President of ECOWAS Commission, when the Court stated that,

“…entering judgment is not a matter of course. The Court must examine the totality of the evidence provided by the plaintiff to determine whether there is a cause of action and if the claim has been satisfactorily proved”

36.         Similarly, in Mohammed El Tayyib Vs Republic of Sierra Leone, the Court held: 

“However, the granting of the application for default judgment against the Defendant does not automatically mean entering judgment on the substantive suit in favour of the Applicant. The court must consider issues of competence, admissibility and proof before determining the case on merit.”

37. The Court will on no occasion give judgment in favour of an applicant based on mere application for a default judgment; the facts in this case, though uncontroverted must establish the merits of the case. In the words of the Court in the above referred case it concluded and held that: 

“As earlier noted, in considering the merits of the case, it is necessary to evaluate the evidence adduced by the Applicant so as to determine whether it is sufficient to ground a decision of this court in his favour”

The court will now proceed to consider the merits of the case.


MERI​TS

 


 

ISSUE NO 2

Whether the allegation that the sentence of the Applicant to two years imprisonment following his conviction by a military court martial without the required confirmation by the appropriate authority as provided the Armed forces Act, is unlawful and therefore void and constitutes violations of Article 6 of the provisions of the African Charter and other international human rights instruments ratified by the Respondent State.

38. From the facts presented for consideration, the Applicant, was a member of the Nigerian Army posted to sector 7 Riyom, in Plateau State. The Applicant averred that sometime in 2012, in the course of his official duty, a Rifle belonging to the Nigerian Army in his possession was stolen at his duty post. On this premise, the Applicant was arrested, detained and subsequently tried and convicted to a term of 2 years imprisonment by a Court Martial. The Applicant further states that his conviction was not confirmed by the relevant confirming authority and as such is illegal and amounts to a nullity. Consequently, the Applicant approached this Court to adjudge that his arrest, detention, trial, conviction and subsequent dismissal by the Respondent is illegal, ultra vires, null and void and contravenes the provisions of Article 6 of the African Charter, Principle 2 of the Body of Principles for the Protection of all Persons under Any form of Detention or Imprisonment, Principles 3, 4, 9 and 39 of the Body of Principles of the Protection of All Persons under any form of Detention or imprisonment . The Respondent did not put up a defense in rebuttal to the claims of the Applicant.

39. The following sections of the Armed Forces Act (AFA) Cap A20. Laws of the Federation of Nigeria (LFN) are relevant in determining the issue raised above.

40. Section 68 (1)(a) of the Armed Forces Act provides,

“A person subject to service law under this Act who loses a public or service property of which he has the charge or which forms part of the property of which he has the charge or which has been entrusted in his care, is guilty of an offence under this section and liable, on conviction by a court-martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

41. Section 148 of the Armed Forces Act also provides that any finding of guilt and sentence for a criminal charge by a court-martial must be transmitted to the confirming authority for confirmation of the finding and sentence. It also provides in Subsection (2) that where the record of proceedings of a court- martial… are not transmitted within sixty days as aforesaid, and the accused remains in custody, he shall be released unconditionally pending such confirmation or review.” It further states that until the required confirmation is made, such finding or sentence shall not be treated as a finding or sentence (Subsection 3). The said Section 148 (3) provides:

“A finding of guilty or sentence of a court-martial shall not be treated as a finding or sentence of the court-martial until it is confirmed: Provided that:

a) this subsection shall not affect the keeping of the accused in military custody pending confirmation, where the sentence is a term of imprisonment or a higher sentence, or the operation of sections 149 and 150 of this Act, or the provisions of this Act as to confirmation or approval;

42. Section (a) above contemplates that when the sentence is a term of imprisonment a confirmation at some point is necessary though detention within the waiting period is authorized. In the instant case, the Applicant remained in detention without a confirmation order. More importantly, he served his two years prison term without the said confirmation. The question to be determined at this point is whether the sentence passed on the Applicant is deemed valid in the absence of a confirmation order from the confirming authority?

43. It is evident from the provisions of the AFA that the Confirming Authority plays an indispensable role in virtually all matters relating to the Court Martial. Also, the wordings of the AFA in relation to the confirming authority embodies a continuous use of the word “shall” which denotes the doing of a mandatory act. To buttress this assertion, Section 151 (1) of the AFA provides the responsibilities of the said confirming authority in relation to the court martial in the following words:

“Subject to the provisions of section 150 of this Act and to the following provisions of this section, a confirming authority shall deal with the finding or sentence of a court-martial—

1.  by withholding confirmation, if of the opinion that the finding of the court-martial is unreasonable or cannot be supported, having regard to the evidence or to the fact that it involves a wrong decision on a question of law or that on any other grounds there was a miscarriage of justice; or

2.  by confirming the finding or sentence; or……..

(c) by referring the finding or sentence or both for confirmation to a higher confirming authority”.

44. From the above provisions, the Court notes the following:

a.  The loss of a public or service property by a person subject to service is criminalized and subject to prosecution by a court martial

b.  Upon conviction, records of proceedings must be transmitted to the authorizing authority within 60 days of conviction

c.  The concerned person if in custody must be released unconditionally pending such confirmation or review.

d.  Even where the sentence is a term of imprisonment and therefore authorized to be detained, a confirmation must still be made.

e.  Where no confirmation is made, such finding or sentence shall not be treated as a finding or sentence.

45.A careful perusal of section 150 (a) of the above provision shows that a confirmation by the confirming authority can be withheld where it finds the decision of the court martial to be unreasonable, or where such finding/sentence will lead to a miscarriage of justice. It can therefore be deduced that the role of the confirming authority is key as it holds the powers to confirm, withhold, or make a referral in the circumstances of each case. The confirming authority is thus in a position of an appellate or reviewing authority over the decision of the court martial. The decision of the court-martial can therefore not be executed without such approval or confirmation by the reviewing authority. Where therefore the authority neither confirms nor approves the decision, the position presents itself as a “no show” which is analogous to what will be referred to under the juris system as a “hung jury”. Consequently, such a decision by the court martial becomes inoperative. See the decision in United States v. Perez (U.S) 579 (1824). See also Logan v. United States, 144 (U.S) 148 (1891).

46. In the instant case, there was no confirmation by the confirming authority to validate the decision of the court martial and no this court has no records to show that the court martial acted within the exemptions under section 150 of the AFA. The failure to confirm the decision of the court martial is therefore tantamount to its rejection without cause. It follows therefore that the judgment of the court martial, which is subject to, and dependent on the confirmation by the confirming authority was improperly executed. The execution of that judgment is thus a violation of the right of liberty of the Plaintiff.

47. In conclusion, we are of the view that though the arrest, and trial of the Applicant were in order, the conviction having not been confirmed as required by the AFA above is null and void. In the absence of any defense by the Respondent, this allegation is well founded. The Court therefore finds that the detention in prison of the Applicant was arbitrary and consequently a violation of his right to liberty contrary to the Section 6 of the African Charter.

IS​SUE NO 3

Whether the allegation of violation of other rights Applicants as claimed have been proved.

Apart from the allegation of the violation of the right to liberty already analysed above, The Applicant also alleges the violation of the following rights: right to non- discrimination (Article 2 of the Charter); equality before the law and equal protection of the law (Article 3 of the Charter), right to life and integrity of his person (Article 4 of the Charter), right to respect of dignity inherent in a human being and prohibition from torture, cruel, inhuman and degrading punishment and treatment (Article 5 of the Charter); to have his cause heard (Article 7 of the Charter); right to work (Article 15 of the Charter, Article 23 of the Universal Declaration of Human Rights (UDHR) and Article 6 of the International Covenant on Economic, Social and Cultural Rights). He also alleges the violation of his rights as protected under the Body of Principles for the Protection of All Persons Under any Form of Detention or Imprisonment, as regards to the way he was treated while in detention and his detention prior to his trial and conviction.

As earlier noted, the Court will examine the facts adduced to determine if they avail the applicants of his claims.

O​n the right to non-discrimination

48. The Applicant alleges that his right to non-discrimination was violated by the Respondent State, contrary to Article 2 of the Charter and Article 2 of the UDHR. They provide for the enjoyment of human rights and freedoms without discrimination based on race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.

For an allegation under this head to succeed, there must be established a different treatment in a similar or identical case. The Court recalls the case of Justice Paul Uuter Dery v. The Republic of Ghana Jud. No. ECW/CCJ/JUD/17/19, para, 88 in which it stated thus

“For a​n action of discrimination to succeed under the articles listed above, there must be established a difference of treatment in an identical or similar case.”

The facts of the case as presented by the Applicant does not show that he was discriminated against on the grounds, on race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status, neither has he presented any evidence to show a similar case where a different treatment was effected. The Court is of the view that it is not sufficient to make sweeping allegations but such allegations must be substantiated with sufficient facts and evidence. Based on this consideration, the allegation of discrimination not been well founded, fails and is accordingly dismissed.

4​9. On the right to equality before the law and equal protection of the law.

a)  Right to equality before the law

The Applicant alleges that his right to equality before the law was violated by the Respondent State. Article 3 of the Charter provides:

“1. Eve​ry individual shall be equal before the law

2. Right to equal protection of the law”

The Court recalls its finding in Badini Slafo v The Republic of Burkina Faso, Judgment No ECW.CCJ/JUD/13/12, where it stated that,

“Equ​ality before the law presupposes that equal treatment is accorded people finding themselves in similar situations. Thus, examining the allegation of the violation of the principle of equality requires that at least two similar legal situations be put side by side as to compare and find out whether an ill treatment was concretely meted out to either one or both of them.”1

The Court notes from the facts of the case that the Applicant has not shown any proof that the treatment he received from the Nigerian Army, was different from the treatment meted to another person who was tried and convicted of a similar offence. In other words the Applicant has not proved that the Respondent’s action towards him during his trial by the Military Court Martial was discriminatory under the applicable law, which is the Armed Forces Act. The Applicant having not established this claim, the relief sought fails and is therefore dismissed and the Court so holds.

b) Rig​ht to equal protection of the law.

On the other hand, the right to equal protection of the law in the context of the right to a fair trial, as provided for under Article 14(5) of the ICCPR states that, Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

The court is unable find any documentary evidence before it to reach a conclusion that this allegation has been established. The claim being unfounded and is therefore dismissed and the Court so holds.

50.   0n​ the right to life

The Applicant alleges that his right under Article 4 of the Charter was violated. Article 4 of the Charter provides:

Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”


The Court notes that this provision deals exclusively with the fundamental right to life and the prohibition of the deprivation of this right arbitrarily. It envisages a complete annihilation of a human being which though must not be arbitrary, in other words a victim of the violation of the right to life is expected to be dead and not able to speak for him/her self. From the submissions of the Applicant, it is clear that he is very much alive and well. Specifically, the Court notes his averment in paragraph xl of his statement of fact, in which he stated that, “The Applicant aver that following his irregular and unlawful dismissal from the Nigerian Army, he has been made to be an idle young man residing at Bandawa Lugere Lamurde Local Government Area of Adamawa State without no reasonable and feasible means of sustenance.” This is a clear indication that the Applicant is alive and resides in Adamawa state.

The Court finds that the Applicant’s claim is baseless, unfounded and therefore holds that the Applicant’s right to life has not been violated.

5​1. On The right to respect of the dignity inherent in a human being and prohibition from torture.

The Applicant alleges that while he was in detention, he was physically, psychologically, mentally and emotionally traumatised, which is a violation of his rights under Article 5 of the Charter. Article 1 (1) of the United Nations Convention Against Torture (UNCAT), which is the internationally recognised instrument on torture, defines torture as:

“…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 has 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 or suffering arising only from, inherent in or incidental to lawful sanctions.”

52. With regards to the allegation of torture, the Court recalls that an allegation of torture will be established when an Applicant provides a medical report which shows that injury is consistent with the torture alleged, as stated in the case of Federation of African Journalists and Others v. The Republic of the Gambia, Judgment No: ECW/CCJ/JUD/04/18, Pg. 54 this court held that,

“It is trite that the burden of proof rests on he who asserts the affirmative and not on he who denies.”

Furthermore, the Court stated that,

“The burden therefore, lies on the Applicant to establish their allegation. The 4th and 5th Applicants in establishing their claim attached a medical report from an independent forensic experts group. In the report, the experts stated that the 4th and 5th Applicants suffered from chronic physical issues as well as heavy symptoms of post- traumatic stress disorder. The physical and psychological findings when considered separately and together are highly consistent with the act of torture and ill-treatment that they allege. This report has not been contested by the Defendant and in the absence of any refute, this amounts to an admission.”

53.  The Court notes that in the instant case, the Applicant has not shown any proof, including a medical report that indicates that the Respondent State through the Nigerian Army carried out any of the acts listed amounting to torture during his detention. The Court will not conclude that detention automatically amounts to being tortured within the meaning of the provisions of the UNCAT. Such allegation must be proved. The Court therefore holds that the allegation of torture fails

54.  Allegation of cruel, inhuman and degrading punishment and treatment Cruel, inhuman and degrading treatment and punishment entails acts which do not fall within the ambit of torture but which nonetheless dehumanize and degrades the human being. Instances of overcrowding in detention places, sleeping on bare wet floor, and inappropriate clothing in extreme weather. See European Court of Human Rights’ Judgment in Application no. 2346/02 Pretty v United Kingdom, Judgment of 29 April 2002, para 52 and Application no. 44558/98 para 117 Valasinas v Lithuana, Judgment of 24 July 2001, para 117, where it was held that,

Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3…”

55. In addition, the Court further notes the European Court’s case law, which refers to ill treatment as “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering.”

The Court notes that the Applicant has also not adduced any evidence that shows he was subjected to any cruel, inhuman and degrading treatment or punishment by the Respondent State during his detention. The Court will not hold that his detention alone meets the required threshold of severity and intention established under international law for establishing cruel, inhuman and degrading treatment or punishment. The Court therefore finds that the Applicant’s right under Article 5 of the Charter as it relates to any cruel, inhuman and degrading treatment or punishment has not been violated as the claim is unfounded and the Court so holds. The claim is therefore dismissed.

56.  On the right to have his cause heard within a reasonable time.

The Applicant contend that the Respondent State violated his right to have his case tried within a reasonable time contrary to the provisions of Article 7 of the Charter, having been detained for a period of 19 months from April 2012 prior to his trial, to 9 November 2013, without trial. Section 7 1(d) of the C53harter guarantees the right of an accused to be “tried within a reasonable time by an impartial court and tribunal”. This guarantee is one of the fundamentals of the right to fair hearing. This Court recognizes this guarantee when it held in Tandja v. Republic of Niger (2010 CCJELR) pg. 130 and in Federation of African Journalists and Others v. The Republic of the Gambia Pg. 50 that A person detained on a criminal charge has the right to trial within a reasonable time or to be released pending trial.” The Court also held In Col. Mohammed Sambo Dasuki (Rtd) V. Federal Republic of Nigeria ECW/CCJ/JUD/23/16 Unreported, that:

“Deprivation of a person’s liberty must at all times be objectively justified in that the reasonableness of the grounds of detention must be assessed from the point of view of an objective observer and based on facts and not merely on subjective suspicion”.

57. Other international law jurisprudence have affirmed same as seen in decisions of the Inter-American Court on Human Rights, in Application No 17140/05, Judgment of 24 April 2008; Kempf and others v Luxembourg, para 48; European Court of Human Rights in Ruiz Mateos v Spain, Judgment of 23 June 1993 para 30; Application No 21444/11, Judgment of November 5 2015, Henrioud v France, para 58; and the African Court on Human and Peoples’ Rights in AfCHPR Application No 005/2013 Alex Thomas v United Republic of Tanzania, Judgment of 20 November 2017, para 104.

58. Under this principle, three elements should be taken into account to access reasonableness of time to conclude judicial proceedings. These elements are: a) the complexity of the matter, b) the procedural activities carried out by the interested party, and c) the conduct of judicial authorities – See Alex Thomas v Tanzania (supra). In Buzadji V. The Republic of Moldova application No.23755/07 Judgment Strasbourg, 5 July 2016 Para. 91 the ECHR held that:

“It primarily falls on the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time”.

59. In the instant case, the Court is of the considered opinion that the matter regarding the Applicant was not one of such serious complexity, to justify the incarceration of the Applicant for 19 months before trial and conviction. After all it was a case of a missing rifle which the applicant himself reported. The Respondent State had the responsibility under international law, to ensure the Applicant was tried promptly.

60. Furthermore, it is instructive that the Armed Forces Act itself has clear provisions with regards to timeline for detention of persons subject to service. Section 122 of the AFA provides:

“Subject to the provisions of subsection (2) of this section, the allegations against a person subject to service law under this Act who is under arrest shall be duly investigated within reasonable time and as soon as may be, either proceedings shall be taken for punishing his offence or he shall be released from arrest within 24 hours.

(2)The commanding officer shall have power to determine whether further detention shall continue beyond a period of 24 hours.

(3)Where a person subject to service law under this Act, having been taken into service custody, remains under arrest for a longer period than eight days without a court-martial for his trial being assembled—(a) a special report on the necessity for further delay shall be made by the commanding officer to the prescribed authority in the prescribed manner; and(b)a similar report shall be made to the like authority and in the like manner every eight days until a court- martial is assembled or the offence is dealt with summarily or the person is released from arrest, the total period of such further detention not exceeding ninety days”.

From the above provision, it is clear that a person under service law who has been remanded in custody must be brought before a court-martial within a period not exceeding ninety (90) days. The Applicant in this case was detained from 8th April 2012 to 9th November 2013 approximately 19 months without trial. This is in clear violation of the laid rules in the AFA as shown above.

61. From the analysis deriving from this Court, the international jurisprudence and the provision of the Armed Forces Act on the reasonableness of detention period, The Court can only come to the inevitable conclusion that the pre-trial detention of the Applicant for 19 months was The Court finds was inordinate and unjustified. The allegation is well founded and the Court holds that the Respondent has violated the Applicant’s right to have his cause heard within a reasonable time contrary to Article 7 of the Charter.

62.  On the right to be promptly informed of the charges at the time of arrest. Article 9 (2) of the International Covenant on Civil and Political Rights provides:

“Everyone who is arrested shall be informed, at the time of arrest, of the reas​ons for his arrest and shall be promptly informed of any charges against him.

The Human Rights Committee in its General Comment 35 on Article 9 of the ICCPR (Liberty and Security of Person), has recognized that not only must the deprivation of liberty be in accordance with laid down laws, but must also be accompanied with procedural safeguards to ensure that such deprivation is not arbitrary. One of these procedural safeguards is that an arrested person must immediately be informed at the time of arrest, of the reasons for his arrest and charges against him. See African Court decision in Application No 005/2013 Alex Thomas v United Republic of Tanzania

63. In the instant case, The Applicant states that at the time of his arrest, he was not informed of the nature and reasons for his arrest before he was detained. It is curious that the Applicant who is a military man and who reported the loss of the rifle allocated to him pursuant to which, he was arrested can deny knowledge of the reason for his arrest. In light of this consideration, the Court finds that this allegation is unfounded and it is therefore dismissed.

64.  On the alleged violation of the right to work

The Applicant alleges that the Respondent State violated his right to work because of his irregular and unlawful dismissal from the Nigerian Army. He claims that after he had served his prison sentence and was released, he was not reinstated to his position at the Nigerian Army, despite several letters demanding his reinstatement, written by his counsel to the authorities of the Nigerian Army.

Article 23 of the Universal Declaration of Human Rights, which is reechoed in Article 15 of the Charter and Article 6 of the International Covenant on Economic, Social and Cultural Rights provides:

“Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”

The Court recalls its jurisprudence the case of Justice Paul Uuter Dery and others v Republic of Ghana, Judgment No. ECW/CCJ/JUD/19, para 82, where it stated, “The violation of the right to work contemplates a severance from work which permanently deprives the employee of the job under a condition that is manifestly unfair”.

In the instant case, The Applicant’s contention is that he is entitled to be restored to his position haven served the requisite sentence. All entreaties by his legal representatives to the Nigerian Army to that effect have failed. The Court notes that Section 68(1) of the AFA which prescribes 2 years imprisonment or less for the loss of a service property does not preclude a reinstatement after prison sentence has been completed. The Court also notes its earlier holding that the prison sentence was unlawful comes to the conclusion that the refusal of the Respondent to reinstate the applicant is a violation of his right to work contrary to Art 15 of the Charter,

6​5.  On the violation of Article 1 of the Charter

Article 1 of the Charter obligates all States Parties to the Charter to take measures to guarantee respect for human rights. It provides as follows:

“The member States of the Organisation of the African Unity, parties to the present Charter shall recognise the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.”

The Court notes that though the Applicant has not made any submissions in support of the contention that Article 1 of the Charter was violated by the Respondent State, the Court will however exercise its discretion to consider whether this Article has been violated. Article 1 of the Charter places responsibility on all States Parties to take legislative and other measures to ensure that rights in the Charter are respected.

66. In the instant case, the Court has found the Respondent State in violation of several rights contained in the Charter, which means that the Respondent State did not take measures to ensure that the rights in the Charter are respected. The violation of the abovementioned rights therefore brings about the concurrent violation of Article 1 of the Charter. The Court therefore finds that the Respondent State has violated the provisions of Article 1 of the Charter.

I​SSUE NO 4

67. Whether in the light of the facts and evidence adduced the Applicant is entitled to the reliefs sought.

It is an established principle recognised in international law, which has been reiterated by the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, that when a State has violated the rights of an individual as enshrined in the Charter, it should take measures to ensure that the victims of human rights abuses are given effective remedies including restitution and compensation.” See Communications 279/03 and 296/05 Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (COHRE) v Sudan, Twenty Eighth Activity Report: November 2009-May 2010 para 229 (d); Reverend Christopher R. Mtikila v United Republic of Tanzania (reparations)(2014) 1 AfCLR 72, para 29.

The Court in the course of its analysis above, has come to the conclusion that the following rights has been violated for which appropriate remedy are ordered: The right to liberty (Article 7) of the Charter), to have his cause heard (Article 7 of the Charter); right to work (Article 15 of the Charter) and Article 1of the Charter.

68. Having found that the Respondent State has violated several rights of the Applicant contrary to the provisions of the Charter and other international human rights instruments ratified by the Respondent State, the Court finds that the Respondent State is liable and responsible under international law for remedying the violations against the Applicant.

69. The court however notes that with regards to the applicant’s application for an order for payment of his monthly salary in the sum of 50,000 naira from March 2015 to date of judgment and also the sum of 45,000 naira as operation allowance from March 2015 to date of judgment, no documentary evidence was provided to support these amounts. In that wise the Court is unable to award the claimed sum. However, since the applicant would have been entitled to salary and the operation allowance within these periods, the court directs the Respondent who is the natural custodian of these information to calculate and pay the Applicant the applicable amount up to the time of release from detention.

COSTS

70. Article 66 (11) of the Rules provides, “If costs are not claimed, the parties shall bear their own costs.” The Court notes that the Applicant did not make any claim as to costs; the Court therefore decides that he shall bear his own costs.

DECISION

71. The Court declares:

i.     That the Application meets the requirements for a default judgment under Article 90 (4) of the Rules;

ii.     That the Respondent State violated the Applicant’s right to liberty;

iii.     That the Respondent State violated the Applicant’s right to be heard within a reasonable time;

iv.     That the Respondent State violated the Applicant’s right to work;

v.     That the Respondent State violated Article 1 of the Charter;

vi.     That the Respondent State did not violate the Applicant’s right to equality before the Law;

vii.     That the Respondent State did not violate the Applicant’s right to equal protection of the law;

viii.     That the Respondent State did not violate the Applicant’s right to non- discrimination;

ix.     That the Respondent State did not violate the Applicant’s right to protection from torture, cruel, inhuman and degrading treatment and punishment;

x.     That the Respondent State did not violate the Applicant’s right to life

72. The court orders the Respondent State to:

a.  Calculate and pay all salary arrears and other entitlements owed to the Applicant from March 2015 to the date of judgment.

b.  Pay the sum of ten million naira only (NGN 10, 000,000), to the Applicant as compensation for the violation of his rights.

On Costs:

102. Decides that the Applicant shall bear his own costs.

Thus pronounced and signed on this 11th Day of October, 2019 in the Community Court of Justice, ECOWAS, Abuja, Nigeria.

AND THE FOLLOWING HAVE APPENDED THEIR SIGNATURES:

Hon justice Gberi-Be OUATTARA                                     Presiding Judge

Hon. Justice Dupe ATOKI                                                  Judge Rapporteur

Hon Justice Januaria COSTA                                             Member

 

A​ssisted by

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/ 12 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Ouattara JA
Moreira-Costa JA
Search summary

 

IN THE COURT OF JUSTICE OF THE ECONOMIC COMMUNITY

OF THE WEST AFRICAN STATES (ECOWAS)

HELD IN ABUJA

 

ON SEPTEMBER 26th, 2019

PROCEEDING N.º ECW/CCJ/APP/12/18

 

JUDGMENT N.º ECW/CCJ/JUD/26/19

 

 

BETWEEN:

SALIFO SAWADOGO                                                                                      APPLICANT

 

AND

 

THE STATE OF BURKINA FASO                                                                       DEFENDANT

 

COMPOSITION OF THE PANEL

 

Honorable Judge Gberi-Be OUATTARA -                            President

Honorable Judge Dupe -ATOKI -                                       Member

Honorable Judge Januária Tavares Silva Moreira COSTA - Member/Rapporteur

 

Assisted by: Athannase Atannon                                    – Deputy Chief Registrar

 

ON THE REPRESENTATION OF THE PARTIES

ON BEHALF OF THE APPLICANT:

The Lawyers: Maitre Hamidou SAVADOGO and Maitre Seydou Roger YAMBA

 

ON BEHALF OF THE DEFENDANT:

Agent Judiciare du Tresor

 

1. ON THE PROCEDURE

 

The applicant, Mr. SALIFOU SAWADOGO came, by means of an application initiating proceedings (doc.1) registered at the Court Registry on 23rd February 2018, to initiate the present action against the STATE of BURKINA FASO, claiming infringement of the parliamentary immunity he enjoys under Articles 86 (2 and 3) of the Rules of Procedure of the National Assembly of Burkina Faso, 1 of the ECOWAS Supplementary Protocol A/SP.1/12/01 of 21st December 2001 on Good Governance and Democracy, 21 of the Additional Act A/SA/1/12/16 relating to the Enhancement of the Powers of the ECOWAS Parliament, 8 of the Regulation of the 4th Legislature of the ECOWAS Parliament of 8th February 2016 and 206 And 52 of the Burkina Faso Code of Criminal Procedure.

He gathered documents, a total of 16 Annexes.

The Defendant State was duly summoned on 26th February 2018 and it presented its defense (doc.2), which was registered with the Court Registry on March 20th, 2018 and notified to the applicant on 10th April 2018.

The parties were heard at the sitting at this Court on 14th May 2019.

 

ON​ THE FACTS CLAIMED BY THE APPLICANT

 

1. The applicant, Mr Salifou SAWADOGO, has been a burkinabe Member of Parliament since 30th December 2015, elected under the banner of the Congress for Democracy and Progress abbreviated "CDP" (opposition party). ; (Annex 1)

2.  In addition, he was elected Member of the ECOWAS Parliament, as set out in the sworn statement of 4th February 2016; (Annex 2)

3.   On September 13th, 2016, by letter N.º16-511/TMO/P, the Government Commissioner at the Ouagadougou Military Court appealed, through the Minister of Justice, to the H.E the President of the National Assembly of Burkina Faso to request authorization to prosecute or waive the parliamentary immunity of Parliament Member SALIFOU SAWADOGO; (Annex 3)

4.  To support such a request, the Government Commissioner at the Ouagadougou Military Court claimed that after an attempted Coup d'état orchestrated in Burkina Faso on September 16th, 2015, the applicant's criminal liability had to be clarified for the following offenses:

-       Criminal association;

-       Acts of vandalism;

-       Aggravated intentional degradation or destruction of movable or immovable property belonging to others;

-       Involvement in attack on State security;

-       Any other consequential infringements.

5.  Upon receipt of the request, the National Assembly of Burkina Faso withdrew Parliament Member Salifou SAWADOGO's parliamentary immunity; (Annex 4):

6.   The applicant was therefore brought before the investigating judge of the Ouagadougou Military Court, where he was heard, imprisoned and then notified to appear before the Investigating Control Chamber, who referred him to the Military Court for trial on 27th February 2018 following the prosecution decision; (Annexes 5 and 6)

7. In the procedure for waiving his Parliamentary Immunity by the National Assembly of Burkina Faso, the request was made by the Government Commissioner of the Ouagadougou Military Court and not by the Attorney General, as required by Article 86 of the Rules of Procedure of the National Assembly; (Annex 3)

8. In Burkina Faso, before the courts, the Public Prosecution Service is represented by a Faso Prosecutor or Government Commissioner and before the Courts by Attorney Generals;

9. The Government Commissioner at the Ouagadougou Military Court, who requested the waiver of parliamentary immunity, is the equivalent of a Faso Prosecutor at the Court;

10. This authority cannot request the waiver of parliamentary immunity of a Parliament Member;

11. Only the Attorney General at the Ouagadougou Court of Appeal could request the waiver of the Parliament Member´s parliamentary immunity before possibly making him available to the Government Commissioner at the Ouagadougou Military Court;

12. The waiver of his parliamentary immunity was made in breach of the rules of law governing the matter, namely Article 86 of the Rules of Procedure of the National Assembly of Burkina Faso;

13.  That from the beginning of the investigation until the prosecution hearing, no request for a persecution permit was sent by the investigating judge or another Burkina Faso authority to the ECOWAS Parliament;

14. That the judge was aware that he was not dealing with a case of flagrant crime, as he requested the waiver of his immunity from the Burkinabe National Assembly;

15.  And that it could not have been otherwise, because the facts for which he was prosecuted in December 2016 occurred on 16th September 2015 and following days, according to the procedural act;

16. The State of Burkina Faso attempted to rectify the situation by submitting a request for waiver of his immunity to the ECOWAS Parliament in accordance with letter No. 2017/034/AN/PRES/SG dated 5th May 2017; (Annex 10)

17. That there was no waiver of the applicant's immunity as an ECOWAS parliamentary until the referral judgment was addressed;

18.  That he continues to be a Community Parliament Member, as is clear from the invitations to do activities of the ECOWAS Parliament and the authorizations to leave the territory granted by the military justice authorities; (Annex 11)

19. That the applicant enjoys immunity as an ECOWAS parliamentarian throughout the Community, including in Burkina Faso;

20.  That the waiver of his parliamentary immunity by the Burkina Faso National Assembly, as long as that of the ECOWAS Parliament exists, is ineffective;

21. That at the end of the investigation procedure and before the Investigative Control Chamber, the applicant raised the nullity of the proceedings brought against him for breach of Articles 86 of the Rules of Procedure of the Burkina Faso National Assembly, on the one hand, and on the other hand, 20 and 21 of Supplementary Protocol A/SA/1/12/16 on Enhancement of the Powers of the ECOWAS Parliament, Article 1 of the ECOWAS Supplementary Protocol A/SP/1/12/01 of 21/12/2001 on Good Governance Democracy and 8 of the Rules of Procedure of the 4th Legislature of the ECOWAS Parliament of 8th February 2016;

22. That this entity was responsible for ensuring the compliance of the acts and of the whole procedure followed during the proceedings and the investigation;

23. But in order to reject the claim for invalidity concerning breach of Article 86 of the Rules of Procedure of the National Assembly of Burkina Faso, the Control Chamber concluded that:" In accordance with Article 86 of the Rules of Procedure of the National Assembly, the request for waiver of immunity of a parliamentarian must be made by the Attorney General; whereas, however, only the National Assembly remains competent to assess the validity of the petition, since Article 86 (2) gives it the opportunity to declare the application inadmissible; whereas, therefore, it is not for the Chamber to rule on the compliance of the consultation of the National Assembly"

24.  That the Chamber of Control itself acknowledges that this provision has been infringed, but considers that it has no competence to declare invalidity, whereas the Article 206 of the Code of Criminal Procedure gives it the power to verify the compliance of the proceedings brought before it;

25. That it was wrong and in flagrant violation of Articles 206 of the Code of Criminal Procedure and 101 of the Code of Military Justice that the Chamber of Control issued the Judgment No. 076 of 12/29/2017;

 

3​. The Applicant's Conclusions:

 

The applicant thus formulates the following requests:

With regards to the form that the application be considered admissible;

In terms of merits that it be considered well-founded and consequently be evidenced the violation of the rights of the applicant and be declared irregular the proceedings against him and be ordered that he be reinvested into his rights.

 

4. ARGUMENTS PLEADED BY THE DEFENDANT IN ITS DEFENSE:

 

1. Following the failure of the military coup d'état in Burkina Faso on 16th September 2015, judicial information was opened against all persons who participated as author, co-author or accomplice of the coup;

2. Accordingly, there were apparent elements from the investigation of this process likely to determinate the criminal liability of the applicant, Mr SAWADOGO Salifou, then a Parliament Member in the National Assembly;

3. In view of the gravity of the facts, the Military Court wanted the applicant's criminal liability to be invoked, as those of other persons persecuted for the same facts;

4. It then appealed, through the Minister of Justice, to His Excellency, President of the National Assembly, for permission to bring an action against the applicant and to waive his parliamentary immunity;

6. Upon receipt of the request, was set up an ad hoc commission composed of fifteen (15) members appointed on a proportional representation of parliamentary groups;

7.  The discussion at the meeting dealt with the ad hoc committee's conclusions formulated in a motion for a resolution which is limited only to the facts mentioned in the request and transmitted to the President of the National Assembly by the Minister of Justice;

8. On December 6th, 2016, the Members considered the request for the waiver of the parliamentary immunity of the Parliament Member Salifou SAWADOGO;

10. And at the end of a vote by secret ballot, the Members authorized, by 86 in favor and 33 against, 00 abstention, 4 invalid votes, the waiver of parliamentary immunity of the concerned Parliament Member;

11. It was following this parliamentary authorization that the investigating judge accused Mr SAWADOGO and that he was incarcerated at the Army Detention and Correctional Center from December 15, 2016;

12. The admissibility of the request for the purpose of waiving parliamentary immunity is the responsibility of the addressee of the document, namely the Burkina Faso National Assembly;

13.  Pursuant to Article 86 of its Rules of Procedure, only the Burkina Faso National Assembly may consider the admissibility of the application submitted to it;

14.   There is no violation of Article 1 of ECOWAS Supplementary Protocol No. A/SP1/12/01 of 21st December 2001 on Democracy and Good Governance;

15.  As to the alleged infringement of Articles 20 of the Additional Act A/SA/1/12/16 relating to the Enhancement of the Powers of the ECOWAS Parliament and 8 of the Rules of Procedure of the Fourth Legislature of the ECOWAS Parliament of 8 February 2016, the above provisions should be regarded as conferring full powers on the ECOWAS Parliament to stay proceedings or detention of a Parliament Member of the Community;

16. In the present case, after sending a new information mission to Burkina Faso, the ECOWAS Parliament has indeed taken a decision on the circumstances of waiver of parliamentary immunity and imprisonment of the applicant;

17.  Instead of using its powers, that Parliament reminded the Burkina Faso National Assembly that it had an obligation to submit to it in advance the request for waiver of the immunity of the concerned Parliament Member;

18. In its report on its first ordinary session of 2017, held in Abuja from 10 to 25 May 2017, the ECOWAS Parliament welcomed the provisional release of the applicant;

19. Until the judgment of the case, Burkina Faso received no decision from the ECOWAS Parliament ordering the suspension of the proceedings or of the arrest of the applicant;

20. The Chamber of Control found that the investigating judge, acting in the context of a flagrant crime, was not required to request the waiver of Honorable Salifou SAWADOGO's parliamentary immunity;

21.  This process lost its purpose because the trial, which was postponed to February 27th, 2018, resumed on March 21, 2018 and would continue on March 26th and the following days;

22. In the present case, the Chamber of Control has stated that the admissibility of the request for the waiver of the applicant's parliamentary immunity can only be assessed by the addressee of the document, namely the Burkina Faso National Assembly, so that it was not for it to decide on the compliance of the consultation of the National Assembly;

24. The resolution 022-2016/NA relating to the waiver of Parliament Member SAWADOGO Salifou's parliamentary immunity is not a judicial act, but rather a deliberation of the National Assembly;

 

Conclu​sions of the Defendant State

 

The defendant ended by claiming that the applicant's claims should be rejected.

 

On the Issues to Be Decided

 

It is for the Court to determine its jurisdiction for the present case and to decide whether the applicant's claims are well founded.

 

5. O​N THE ANALYSIS BY THE COURT

 

O​n the jurisdiction of the Court:

The jurisdiction of the Court depends on the nature of the question referred to the court by the applicant, based on the facts alleged by him/her.

In this case, the applicant's petition is based on claims of no compliance in the procedure leading to the waiver of his parliamentary immunity at national level and, in the absence of waiver of his parliamentary immunity at ECOWAS level, having thus been filed a criminal case against him under national jurisdiction, which he considers to be violators of his rights, which, however, he does not identify.

The applicant claims that the procedure followed should be declared unlawful and that the criminal proceedings against him be declared void.

The applicant alleges that were infringed:

- The Article 86 of the Rules of Procedure of the Burkina Faso National Assembly;

- The Article 1 of Supplementary Protocol A/SP.1/12/01 of 21st December 2001 on Good Governance;

- The Article 21 of Additional Act A/SA/1/12/16 on Enhancement of the Powers of the ECOWAS Parliament;

- The Articles 52 and 206 of the Burkina Faso Code of Criminal Procedure.

The applicant claims that his rights have been infringed, but he does not substantiate them, although he invokes the jurisdiction of this Court, as provided for in Article 9 (4) of Supplementary Protocol A/SP.01/01/05 of 19/01/2005, to hear cases of human rights violations in any of the member States.

Indeed, it is stated in Article 9 (4) of the Supplementary Protocol 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: … Anyone who is a victim of human rights violations…. ”

And it is case-law of this Court, that its jurisdiction can not be called into question whenever the facts being claimed are related to Human Rights. Cf. the Judgments # ECW/CCJ/RUL/032/2010 of 14th March delivered on the case ECW/CCJ/APP/07/08 between Hissène Habré and the Republic of Senegal, # ECW/CCJ/JUD/05/10 of 8th November 2010, delivered in the case #ECW/CCJ/APP/05/09 case between Mamadou Tandja and the Republic of Niger; # ECW/CCJ/RUL/05/11 pronounced in the case ECW/CCJ/APP/03/09 between Private Alimu AKeem and the Federal Republic of Nigeria.

The 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.

First, it appears that the applicant, in his original pleading, does not specify or identify his human right violated by the Defendant State.

The applicant has the status of national and ECOWAS Community Parliament Member.

The applicant has alleges the violation of parliamentary immunity which he has, in the course of criminal proceedings brought against him and that is being carried under domestic or national court.

 

It remains to be ascertained whether the breach of parliamentary immunity c​onfigures a violation of a human right:

The Constitution of the Republic of Burkina Faso, in its Articles 95 and 96, grants to the national Parliament Members the parliamentary immunity, while the Regulation of the National Assembly of the same State, approved by the Resolution Nº 001/2016/AN, in its article 86, establishes the procedure to waive the parliamentary immunity enjoyed by its Members.

In turn, the Protocol on the Parliament of the Community (A/P.2/8/94), and the Supplementary Protocol A/SP.3/6/06, that amendments it, define the mode of election of the Parliament Member of the Community (Article 7) and confers parliamentary immunity on its members in all Member States (Article 9), while the Rules of Procedure of the ECOWAS Parliament, lays down The procedure for waiving parliamentary immunity (art. 8).

Also the Additional Act /A/SA.1/12/16 Relating to the Enhancement of the Powers of the ECOWAS Parliament at its Article 20, in line with the ECOWAS General Convention on Privileges and Immunities of 1978, reproduces in the same vein the content of Article 9 of the Protocol on Parliament (cited above), reiterating parliamentary immunity and stating that any request for waiving of a Member's immunity shall be addressed to the President of Parliament (Article 21).

Within the framework of parliamentary immunities, there is a difference between irresponsibility or material immunity and inviolability (also referred to as substantial criminal immunities and procedural criminal immunities or immunity in the strict sense).

The parliamentary irresponsibility (or material immunity) means that Parliament Members do not incur civil and disciplinary liability because of the votes and opinions they cast in the performance of their duties. It is absolute, perpetual and permanent, and Parliament Members are free from civil, criminal and administrative actions which, pursuant to the opinion votes expressed in the performance of their duties, may be directed against them.

The inviolability (or procedural or immunity in the strict sense) shall mean that Parliament Members shall not be subjected to detention, imprisonment, mere hearing (as deponent or defendant) or trial for any other acts, save as otherwise provided in the Constitution or the Law and with the formalities provided for therein.

That is, this immunity does not to exempt the Parliament Member from being detained, arrested, heard or tried, but it only prohibits it without the authorization of the Assembly, which will then be able to check whether there is any indication that justify maintaining these immunities.

Unlike the parliamentary irresponsibility, the immunity in the strict sense has a limited, provisional and temporary character and is valid only in criminal proceedings and extends only for the duration of the mandate.

The deliberation of the assembly on immunity, as a rule, takes the form of resolution (as proceeds in the Defendant State) - This resolution is a legal-constitutional act with a political nature, as it represents the exercise of a faculty directly conferred by the Constitution that defines its requirements and its object.

Thus, this is an act of relationship between two organs of sovereignty (National Assembly and the Court) that represents in practice a conditioning of the Judiciary by the Parliament, with scope beyond the mere procedural effects, as it configures as an instrument for the affirmation and independence of the legislative power, and is therefore on the same level as legislative acts coming from a sovereign body or a supreme State body, with an individual and concrete nature, similar in their content to administrative acts.

Parliamentary immunity, either the national (of the concerned State Member) or the Community (ECOWAS) immunity enjoyed by the applicant is not a personal privilege of the Member of Parliament, but prerogatives or guarantees granted to Parliament Members with a view of ensuring them the protection and independence necessary for the performance of their duties. Therefore, they are ultimately aimed at preserving the dignity, integrity and independence of Parliaments as a whole, vis-à-vis other State bodies or any other authorities.

Therefore, it appears that the parliamentary immunity itself does not constitute a human right.

However, violations of parliamentary immunities may lead to violations of human rights provided for in international instruments, such as the Universal Declaration of Human Rights and the African Charter on Human and Peoples' Rights, including the rights to freedom of expression, equality under the law and fair trial. (See Conclusions OF ADVOCATE GENERAL NIILO JÄÄSKINEN delivered on 9th June 2011 (1) on the Proceedings C-163/10 of the European Court of Justice).

In this case, none of these or other human rights have been claimed by the applicant.

Whereas by virtue of the combined provisions of Articles 9 and 10 of the Supplementary Protocol A/SP.01/01/05 of 19/01/2005, this Court has jurisdiction only in cases of human rights violations, provided that the petitions meet the conditions laid down therein.

The applicant has come in this application to ask this Court of Justice of the Community to determine that his rights have been infringed – which he does not materialize – and declare the proceedings against him non compliant and order the be reinvested on him his rights.

In this case, the alleged breach of parliamentary immunity, as the applicant admitted, merely generates procedural nullity in the criminal proceedings brought against him and which is under national jurisdiction.

So much so, that the applicant sought from the Investigative Control Chamber, the declaration of procedural nullity claimed, having that entity issued Judgment No. 076 of 12/29/2017, in which it stated that it had no jurisdiction to address the claimed defect.

It means that what the applicant is seeking now is to obtain from this Court a ruling reviewing the invalidity claimed and prosecuted in the domestic court.

This Community Court of Justice has repeatedly reiterated that “In accordance with its area of competence, it is not for it to assess the legality of decisions taken by the national courts of the Member States" - See Judgment delivered on 23 April 2015 in ECW/CCJ/APP/19/14 in the case of Tidjani Abdoulkarim and others versus Republic of Niger.

In addition, it has contended in several cases that it is outside its mandate to examine a decision taken by a court of a State Member in accordance with its constitutional provisions and that it is not a court of appeal, cassation or reformatio of decisions taken by the jurisdictions at national level. Cfr- Judgments ECW/CCJ/JUD/06/13 in case ECW/CCJ/APP/19/11, between Kpatcha Gnassimbé versus Republic of Togo (in CCJLR 2013 pag.151paragraph 36) and ECW/CCJ/JUD/03/07 delivered in case ECW/CCJ/APP/05/06 between Sieur Moussa Leo Keita versus State of Mali.

In this sense, it is not for the Court to address the invalidities generated in criminal proceedings - unless there is an claim of the infringement of a human right - especially when they have already been dealt with at national level, such as the present case - under penalty of breach of the principle of res judicata, as, as has been pointed out, this Court is not an appeal body against judgments pronounced in domestic courts.

That is why this Court also has ruled “That in order to make his cause prosper the applicant must indicate the human rights being violated and prove the such violations. “-Cf. Judgment of 23 April 2015 in ECW/CCJ/APP/19/14 between Tidjani Abdoulkarim and Others against the Republic of Niger.

In the present case, the facts claimed by the applicant not only do not specify the human rights allegedly infringed by the State of Burkina Faso, but also from the analysis of the facts, this Court did not uncover the violation of any human rights.

Thus, since the infringement of any human rights has not been alleged nor demonstrated, this Court has no jurisdiction to hear the case.

 

6. D​ECISION

 

In the light of the foregoing, the Court finds that it has no jurisdiction to hear the case and, consequently, it dismisses the application initiating proceedings as inadmissible.

 

Expenses:

That the applicant shall bear the costs in accordance with the Article 66 (1) 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 September 2019.

 

B​y the Judges:

Honorable Judge Gberi-Be OUATTARA -                               President

Honorable Judge Dupe -ATOKI -                                           Member

Honorable Judge Januária Tavares Silva Moreira COSTA -       Member/Rapporteur

 

Athannase ATHANNON -     Deputy Chief 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/ 11 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Moreira-Costa JA
Search summary

 

IN THE COMMUNITY COURT OF JUSTICE OF

ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN IN ABUJA NIGERIA

ON THE 24TH OF JANUARY, 2019

 

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

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

 

BETWEEN:

TAAKOR TROPICAL HARDWOOD COMPANY LTD.             PLAINTIFF

AND

THE REPUBLIC OF SIERRA LEONE                                      DEFENDANT

 

COMPOSITION OF THE COURT:

HON. JUSTICE EDWARD AMOAKO ASANTE                       - PRESIDING

HON. JUSTICE GBERI-BE QUATTARA                                - MEMBER

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

 

ASSISTED BY:

TONY ANENE-MAIDOH - CHIEF REGISTRAR


JUDGMENT


 

PARTIES

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

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

 

SUMMARY OF FACTS

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

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

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

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

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

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

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

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

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

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

The plaintiff specifically itemizes its accrued losses as follows:

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

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

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

 

RELIEFS SOUGHT BY THE APPLICANT

The Applicant seeks the following reliefs from the Honourable Court:

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

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

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

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

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

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

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

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

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

Specifically, Defendant’s motion is grounded as follows:

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

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

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

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

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

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

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

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

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

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

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

DEFENDANT’S ARGUMENT IN SUPPORT OF THE PRELIMINARY OBJECTION

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

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

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

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

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

PLAINTIFF’S ARGUMENT IN RESPONSE

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

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

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

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

ISSUES FOR DETERMINATION

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

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

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

LEGAL ANALYSIS

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

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

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

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

  •   Article 10: Access to the Court

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

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

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

i)         not be anonymous; nor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DECISION

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

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

 

HON. JUSTICE EDWARD AMOAKO ASANTE                       - PRESIDING

HON. JUSTICE GBERI-BE QUATTARA                                - MEMBER

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

 

TONY ANENE-MAIDOH - CHIEF REGISTRAR

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 48 of 2018
Court name
ECOWAS Community Court of Justice
Judge
Asante JA
Moreira-Costa JA
Search summary

IN THE COMMUNITY COURT OF JUSTICE OF

ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS)
HOLDEN
IN ABUJA NIGERIA

ON THE 1st DAY OF JULY, 2020

SUIT NO: ECW/CCJ/APP/48/18

JUDGMENT NO. ECW/CCJ/JUD/10/20

BETWEEN:

  1. OBINNA UMEH
  2. KENNETH ROBERTS
  3. GOODLUCK EDAFE                                              .... PLAINTIFFS
  4. DR. MATTHEW OGUCHE                     
  5. MACAULEY S. WILLIAM-JUMBO |
  6. JOSEPHINE E. OKEKE (MRS)              
  7. EMMANUEL AGADA                            

AND

FEDERAL REPUBLIC OF NIGERIA                               ....                 DEFENDANT

 

COMPOSITION OF THE COURT:

Hon. Justice Edward Amoako ASANTE                                    - Presiding

Hon. Justice Keikura BANGURA                                              - Member

Hon. Justice Januaria T. Silva Moreira COSTA                          - Member


ASSISTED BY:

Mr. Athanase ATANNON - Deputy Chief Registrar

REPRESENTATION OF PARTIES:

Plaintiffs1 Solicitors:

Festus A. OGUCHE, Esq.

Dr. D. D. MAKOLO, Esq.

K. C. NWAFOR, Esq.

M. S. WILLIAM-JUMBO, Esq.

J. E. OKEKE (Mrs.)

Defendant's Solicitors

T. D. AGBE, Esq.

Suleiman JUBRIN, Esq.

JUDGMENT:

  1. The judgment was read virtually pursuant to Article 8(1) of the Practice Directions on Electronic Case Management and Virtual Court Sessions, 2020.

PARTIES:

  1. The Plaintiffs are community citizens and reside in different parts of the Federal Republic of Nigeria namely Port Harcourt, Abuja, Idah and Enuju.
  2. The Defendant is the government of the Federal Republic of Nigeria, a member State of ECOWAS and a signatory of the African Charter on Human and Peoples' Rights (hereinafter referred to as the "African Charter").

SUBJECT MATTER OF PROCEEDINGS:

  1. i. Restriction of the right of a citizen to take part in a government of his country by imposition of political parties as the only platform for aspiration to elective offices, and the total ban of independent candidacy;
  1. Denial of the right of participation under Article 21, Universal Declaration of Human Rights; Article 13 of the African Charter; and Article 25 of the International Covenant on Civil and Political Rights.
  2. Curtailment of the aspiration of space for contest into elective public offices by the criteria of politcal party platforms as pre-requisite or condition for participation in an electoral process.

PLAINTIFFS' CASE:

  1. The Plaintiffs stated that the Defendant operates a democracy within its national framework, whereby qualified individuals aspire to public offices and as members of Legislative Houses both at the national and state levels. According to the Plaintiffs these elective offices, named in the Defendant's 1999 Federal Constitution (as amended) and in its Electoral Act are essentially the office of the President and the Vice, State Governors and their Deputies, the members of the National Assembly namely the Senate and the House of Representatives and members of the respective States Legislative Assemblies.
  2. The Plaintiffs are saying that the cumulative effect of the relevant provisions of the Defendant's 1999 Constitution and its related electoral laws makes elections to these offices mandatorily under the ticket of a political party. The Plaintiffs say that to aspire to any elective offices, an aspirant must be a card-bearing member of a political party and the former must be certified by the latter as having fulfilled all its internal regulations and formalities to be presented as a candidate for any elections. The Plaintiffs continue that the electoral system is arranged in such a manner that votes cast at any given elections are seen as votes for the political parties that presented the candidates and not for the candidates who contested.
  1. According to the Plaintiffs, public spirited individuals, Plaintiffs inclusive, who have good intentions to serve their country selflessly in any of the elective positions are hamstrung by the restriction on the political and aspirational space which also is an impediment on their right to freedom of participation in the political administration of their country and to take part in the government of their country.
  2. Plaintiffs lodged this suit seeking to get reparation for the alleged violation of their rights to participate directly in the government of their country; citing the refusal of the Defendant to allow them stand as independent candidates in the periodic elections into the Executive and Legislative arms of the government as the basis of the violation.
  3. It is the case of the Plaintiffs that Section 221 of the Defendants 1999 Constitution as amended; is not in compliance with the provisions of Article 13 of the African Charter which accords them the right to participate freely, directly or indirectly in the government of their country.
  4. Plaintiffs further argue that by the provisions of the said Section 221 of the 1999 Nigerian Constitution as amended; which they claim limits participation in election through the platform of political parties, their rights to direct participation in government have been violated and the Defendant is in default of its obligation under Article 1 of the African Charter to protect their rights.

11.In their pleas in law, the Plaintiffs placed reliance on Article 13 of the African Charter, Article 21 of the Universal Declaration of Human Rights, Article 25 of the International Covenant on Civil and Political Rights, all other relevant international human rights instruments and decisions of Human Rights Courts from various jurisdictions as submitted in their Originating Application.

  1. The Plaintiffs therefore urge the Court to find against the Defendant that there has been a continuous violation of their human rights for as long as the law remains in its present state and seek the following declarations:
  1. A DECLARATION that the Plaintiffs, and indeed every citizen of the Federal Republic of Nigeria is entitled to the participation in the government of their country either directly or through freely elected representatives.
  2. A DECLARATION that the exclusion of independent candidacy as criteria for aspiration to elective positions under the Defendants Constitution is a violation of Articles 21, 13 and 25 of the Universal Declaration of Human Rights, African Charter on Human and Peoples' Rights and International Covenant on Civil and Political Rights, respectively.
  3. A DECLARATION that the pre-requisite of membership of a political party as condition for aspirations to elective positions under the Defendant's 1999 Constitution (as amended) and with no provision whatsoever or approval for independent candidacy is an abridgement, curtailment and restriction of the right of participation pursuant to Articles 21, 13 and 25 of the Universal Declaration of Human Rights, African Charter on Human and Peoples' Rights and International Covenant on Civil and Political Rights, and is undemocratic and infringement on internationally guaranteed human rights.


  1. AN ORDER, compelling the Defendant to ensure the full and unimpeded participation of all citizens, including independent candidates in all political processes leading to elections into elective positions through the inclusion of independent candidacy as pre-requisites or criteria for such participation in its domestic laws including its 1999 Constitution (as amended), necessary for the stoppage of the breach of the right of citizens to participate and take part in the conduct of its public affairs particularly those touching on elective positions.
  2. AN ORDER compelling the Defendart to bring its municipal laws, including its Constitution in conformity with the rights enshrined under Article 13 of the African Charter on Human and Peoples' Rights, Article 21 of the Universal Declaration on Human Rights, and Article 25 of the Covenant on Civil and Political Rights, as to allow independent candidature for all its elective positions.
  3. AN ORDER, compelling the Defendant to pay the sum of N5 Million Naira, as exemplary damages for the wanton infringement of fundamental rights of the Plaintiffs and its citizenry and for breach of its international obligations to respect those rights.
  4. AN ORDER compelling the Defendant to pay the costs of this litigation.

DEFENDANT'S CASE:

 

  1. The Defendant refutes the allegations of the Plaintiffs about the violation of human rights and puts them to the strictest proof. Defendant argues that the said Constitutional provision being challenged by the Plaintiffs is in compliance with the human rights provision in Article 13 of the African Charter and other international human rights instrumerts cited by the Plaintiffs. Defendant further argues and submits that the right in question is not an absolute right as there is a drawback clause.
  2. Further, Defendant is challenging the jurisdiction of the Court to entertain the suit on the grounds that, it is not a case of human rights violation but rather the Plaintiffs are seeking the interpretation of the provision of a member state's Constitution which is not within the jurisdiction of the court. The Defendant states that the Court is bereft of competency to order amendments of a member state's Constitution as being sought by the Plaintiffs. The Plaintiffs’ suit is also being opposed by the Defendant on grounds that the suit is statute barred.

J5.ln their plea in law, Defendant relied oi Article 13 of the African Charter, Section 221 of the 1999 Nigerian Constitution as amended, all relevant international human rights instruments and case laws as submitted in their pleadings. According to the Defendant, the provision of its Constitution which opens the right to participate in government through a registered political party is justified under the African Charter and the related international human rights instruments.

RELIEF BEING CLAIMED BY THE DEFENDANT:

  1. The Defendant therefore seeks an orcer of the Court to strike out the suit or declare itself incompetent to entertain same for being speculative, frivolous, vexatious and wanting in merit, being statute barred or for want of jurisdiction.

ISSUES FOR DETERMINATION:

  1. After a careful study of the submissions of both parties in the instant case, the Court distilled the following issues for cetermination:
  1. Whether the Court has jurisdiction to hear this case
  2. Whether the case is statute barred
  3. Whether the Community Court of Justice, ECOWAS can order the amendment of the laws of a member state, particularly the national Constitution
  4. Whether the criteria for participation in the government of the defendant state as provided for in its Constitution and related electoral laws are in conflict with its international and community obligations particularly under the African Charter on Human and People's Rights.

The Court will now proceed to address the issues stated for determination seriatim.

ISSUE 1

Whether the Court has jurisdiction to hear this case:

  1. Parties rely on the provisions of the law establishing the human rights jurisdiction of the Court to argue (or and against whether the Court can hear and determine the instant case by quoting Articles 9(4) of the Protocol 2005 on the Court which define the competence of the Court to entertain cases of human rights violations that occur in member states. The provisions are as follows:

Article 9(4): "The Court has jurisdiction to determine cases of violation of human rights that occur in any member state".

  1. The bone of contention between the parties on jurisdictional issues can be summarized in the following synopsis: Defendant claims that the alleged violation of the Plaintiffs' right was done as a result of the plaintiffs' breach of an existing law, therefore the Plaintiffs cannot approach this Court to invoke Article 13 of the African Charter in tneir favour. According to the Defendant the issue presented before the Court by the Plaintiffs is not that of human rights violation but an interpretation of the Constitution of a member state which is beyond the scope of the jurisdiction of this Court.

20. On the other hand, the Plaintiffs maintain that their application before this Court borders on the failure of the Defendant to fulfill its human rights obligation and that they are questioning the extent to which portions of the Defendant's electoral laws are in conflict with its international obligations specifically, the rights guaranteed pursuant to Article 13 of the African Charter. The Plaintiffs claim that some provisicns of the electoral laws of the Defendant relative to electron to public offices are in violation of their human rights to participate freely in the Government of their country.

21. This Court having perused the subnrssions of both parties on the issue of jurisdiction, recalls its numerous jurisprudence to the effect that once an allegation of human rights violation is made, the court will assume jurisdiction simpliciter over the matter as a separate subject from the determination of the veracity of the claims being sought as amounting to violation of human rights.

22.In BAKARE SARRE v. MAU (2011) CCJELR 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."

Aga in, in the most affirmative terms, this Court in KAREEM MEISSA WADE v. REPUBLIC OF SENEGAL (2013) CCJELR 231 held that:

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

  1. The Plaintiffs are alleging violation of, inter alia, Article 13 of the African Charter. In the case of MOUSSA LEO KEITA v. THE REPUBLIC OF MALI ECW/CCJ/jUD/03/07, this Court held that:

"the rights enshrined in the Africa Charter on Human and Peoples' Rights have been so described so as to bring out clearly their content, import and extent of enjoyment, so that the act of their violation may be qualified as a "Human Rights Violation".

  1. At this stage, jurisdiction ought to be considered as a separate subject from the Court's overall determination of the veracity of the claims being sought by the Plaintiffs. This was amply stated in the case of SERAP & 10 0RS. v. FRN & 4 ORS., ECW/CCJ/JUD/16/14 @72, where this Court held that:

"the mere allegation that there has been a violation of human rights in the territory of a member state is sufficient prima facie to justify the jurisdiction of this court on the dispute, surely without any prejudice to the substance and merits of the complaint which has to be determined only after the parties have been given the opportunity to present their case, with full guarantees of fair trial ”

  1. The Plaintiffs in this instant case having made a claim for the alleged violation of their human rights to participate freely in the government of their country contrary to the rights guaranteed for individuals in Article 13 of the African Charter; and the subject matter of human rights falls within the jurisdiction of this Court and based on the Courts jurisprudence as espoused thus far, the Court holds that it has the jurisdiction to hear and determine this suit.

ISSUE 2:

Whether this case is statute barred

26.lt is the Defendant's case that pursuant to Article 9(3) of the Protocol 2005 on the Court, any action by a party for the violation of his right must be brought within three years of the occurrence oflhc cause of action. Il is the submission of the Defendant that the Plaintiffs’ alleged cause of action arose on the 9th January 2010 thereby becoming statute barred on the 10th January 2013. According to the Defendant, the instant action having become statute barred, this Court cannot proceed to entertain same for adjudication. Defendant further submits that its current Constitution came into operation on the 29lh May 1999 and the Plaintiffs’ suit was filed on the 22nd October 2018, a total of about nineteen (19) years after the Constitution came into effect; arguing that this renders the present suit incurably bad and therefore praying this Court to dismiss same.

27,The Plaintiffs in response argues that Article 9(3) is not applicable to the instant case and that assuming it applies, a statute of limitation cannot apply to terminate the enforcement of a right in terms of a continuing violation of that same right.

Article 9 (3) of the Protocol, 2005 on the Court states:

"Any action by or against a community institution or any member of the community shall be statute barred efter three (3) years from the date on which the cause of action occurred?


28. Indeed the law is certain, that when an action is statute barred, the plaintiff loses the right to enforce the cause of action by judicial process because the period of limitation had lapsed. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. A quick perusal of the jurisprudence of the Court on the provisions of its Article 9(3) of Protocol 2005 will assist the Court in arriving at a decision on this issue.

29. In the case of VALENTINE AYIKA v. REPUBLIC OF LIBERIA (2011) ECW/CCJ/RUL/10/11 at page 237, this Court held as follows;

"It should be stated that where a violation of a right continues, a cause of action lies so long as the infringement persists. Thus a person detained will have a cause of action against his galore any day that the detention continues and time will not run from the date of the first detention."

30. The above stated jurisprudence is also in tandem with the decisions of some International Courts. In the case of LOIZIDOU v. TURKEY - Application No. 15318/89, the European Court of Human Rights was confronted with a similar situation which required its pronouncement on a continuing violation of the European Convention on Human Rights. It held that:

"The court recalls that it has endorsed the notion of a continuing violation of the convention and its effect as to the temporal limitations of the competence of Convention organs. Accordingly, the present case concerns alleged violations of a continuing nature of the Applicant, for purpose of Article 1 of protocol No. 1 (pl -1) and Article 8 of the Convention can still be regarded - as remains to be examined by the court".

  1. What is peculiar to the instant case is the fact that the Plaintiffs' complaint about the alleged infringing electoral laws of the Defendant is not in respect of an isolated election, but the entire legal architecture that keep recurring anytime elections to political office within the federation of the Defendant are conducted. Therefore, the Plaintiffs' submission is that, the alleged infringement is a continuous one against which the Statute of Limitation does not apply as clearly established in the jurisprudence of the Court.
  2. The purport of all the above analyzed jurisprudence is that the statute of limitation does not begin to run unti' the last day the alleged violation takes place and in the case of continuous violation of human rights, the statute of limitation is not applicable. See also: EBERE ANTHONIA AMADI & 3ORS V. FEDERAL REPUBLIC OF NIGERIA ECW/CCJ/JUD/22/19).

33. In the light of the above, this Court is of the view that as long as the allegation of continuous violation of human rights made by the Plaintiff is not controverted, the provisions of Article 9(3) of the Protocol on the Court is not applicable. The Court consequently holds that the instant case is not statute barred.

ISSUE 3:

Whether the ECOWAS Community Court of Justice can order the amendment of the Constitution of a member state:

  1. The Plaintiff stated their mission for coming to this Court when they averred in paragraph 1.3 of their reply to the Defendant's statement of defence in the following words:

"The whole fulcrum of this case is to compel the Defendant to amend Section 221 and other related provisions of its Constitution to make for the participation of individual candidates in its elected process without the compulsion of joining any party or group in conformity with fundamental rights of individuals as enshrined under the Charter ".

  1. To achieve the above mission, the Pla ntiffs firmly argued that this Court

"possesses the competence to compel the Defendant to conform or meet its international obligations. This is notwithstanding whether the act of conformity entails amending the provisions of its domestic laws including the Constitution."

36. Indeed the parties to the African Charter firmly convinced of their duty to promote and protect human and peoples' rights and freedoms, collectively and individually agreed under Article 1 of the Charter that they undertake "... to adopt legislative or other measures to give effect to them (the rights)." Emphasis mine. This undertaking is very significant in general treaty laws for the reason as amplified by the UN Department of Economic and Social Affairs - Handbook for Parliamentarians on the Convention on the Rights of Persons with Disability as follows:

"Except in the rare cases that the laws in a country already conform fully to the requirements of the Convention, a state party will normally have to amend existing laws or introduce new laws in order to put the Convention into practice".

37. When the issue was presented to the Inter-American Court of Human Rights to comment on the state party's obligation under the American Convention which is similar to the undertaking of the state parties in Article 1 of the African Charter, the Court in the case of Garridico and Baigorria v. Argentina (Reparations) - August 27,1998, Series C, No. 39, para 68 stated as follows:

"Under the law of nations, a customary law prescribes that a state that has signed an international Agreement must introduce into its domestic laws whatever changes are needed to ensure execution of the obligations it has undertaken. This principle is universally valid ... Accordingly, the American Convention stipulates that every state party is to adopt its domestic laws to the provisions of that Convention so as to guarantee the rights embodied therein".

38. lt is obvious that where a state party's extant laws are not in conformity with its international obligations, particularly where some persons claim violation of their rights as a result of the non-conformity, the human rights court with the mandate of securing compliance will be resorted to by the affected persons.

  1. The present suit represent the situation afore-mentioned where the plaintiffs in their Application have impugned Section 221 of the Defendant's Constitution as being incompatible with and infringes on their right to participate in the government of the Defendant as protected under the African Charter, UDHR, ICCPR and other international human rights instruments.
  2. The obvious question then is, does this Court have the powers to review the constitution of member states with the view to compelling amendments where the continued application of provisions of the Constitution violates the rights of its citizenry?
  3. The above question is not foreign to this Court. There is a sound jurisprudence of this Court which addresses the issue comprehensively. This Court has repeatedly affirmed in its well established jurisprudence that it is not a Court of Appeal or Court of Cassation over national courts, neither is it empowered to take over the duties of such courts of member states in the interpretation of their constitutional provisions. In the case of Messrs Abdoulaye Balde & Ors. v. The Republic of Senegal, ECW/CCJ/JUD/04/13 pg. 22, the Court recalls its consistently held case law that it has no mandate to examine the national laws of member states or to review decisions made by domestic courts of member states.
  4. Again, in the case of Mr. Akungwang M. Sampson & Anor. v. Federal Republic of Nigeria, ECW/CCJ/JUD/16/17 at page 7, it was held that the Court must first set aside any reference to the national law of Nigeria since the ECOWAS Court does not have jurisdiction over the legality of the national laws of member states.
  5. The Court in adhering to its jurisprudential reasoning not to usurp the powers of national courts to examine the laws of member states, has nonetheless not reneged on or negated its mandate to determine cases of human rights violations that occur in member states. To this end, where in a given application before it, there exists complaint about any human rights violation occasioned by application of any national legislation, to the extent of such violation, this Court will examine the national legislation in the context and pursuit of protection of the human rights concerned. In other words, this Court shall, where a case is brought before it, examine impugned legislations to ascertain whether or not the application of that impugned legislation constitutes a violation of human rights with the view to directing a review.


44. In the case of Federation of African Journalist v. The Republic of The Gambia, Judgment No. ECW/CCJ/JUD/04/18, the Court reviewed the question whether it can examine an impugned provision of the laws of a member state with the view to compelling amendments where necessary. In that case, the Applicants impugned some statutory provisions of The Gambian Criminal Code and the Information and Communication (Amendment) Act by submitting that the continued application of those provisions violated their rights to personal liberty.

  1. In its judgment, the Court reiterated i:s competence in human rights cases and emphatically held that in exercising its jurisdiction, it has the powers to examine the laws of member states under some conditions. In citing the case of Hadijatou Mani Koraou V. Republic of Niger (2004-2009) CCJELR, pg 232 para. 60, in which the court held that: "it does not have the mandate to examine the laws of member states of the community in abstracts but rather, to ensure the protection of rights of individuals whenever such individuals are victims of the violation of those rights which are recognized as theirs, and the court does so by examining concrete cases brought before it", the Court adjudged that "in view of its jurisprudence, this Court has the competence to examine the laws upon which the allegations are based to ascertain whether the laws and punitive measures are regular or in violation of the Applicants' rights".
  2. Having come to the conclusion that there were violations, the Court directed the Respondent State, The Gambia "to immediately repeal and/or amend its laws... in line with its obligations under international law especially Article 1 of the African Charter on Human and Peoples' Rights, the ICCPR and the ECOWAS Revised Treaty".

47.In addressing the role between the domestic courts of member states and the

European Human Rights Court, the latter held in the case of M.N. AND OTHERS v. SAN MARINO 28005/12  | Judgment (Merits and Just Satisfaction) | Court (Third Section) | 07/07/2015, that:

"However, the Court would recall that it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention."

  1. Consequently, this Court underscores the fact that it lacks jurisdiction to examine national laws in abstracto but holds that it has the competence to compel member states to conform or meet their international and community obligations, and it does so where necessary by examining any impugned national laws with the view to ascertaining whether indeed any human rights violations have occurred. In that judicial enterprise, where it is proven that any human rights violations have occurred as a result of an application of any offensive laws, it is within the powers of this Court to direct their review in conformity with international and community obligations of member states.
  2. At this stage, this Court will proceed to examine the impugned Section 221 of the Defendant Constitution vis-a-vis the allegation of infringement of the Plaintiffs' rights, to ascertain whether the said electoral laws are in violation of the Plaintiffs' right to participate in the government of their country as protected under the UDHR, African Charter, ICCPR and other international human rights instruments to which the Defendant is a party.

ISSUE 4:

Whether the criteria for participation in the government of the Defendant State as provided for in its Constitution and related electoral laws are in conflict with its international and community obligations particularly under the African Charter on Human and People’s Rights.

50.lt is the contention of the Plaintiffs that the Defendant's electoral laws which limit the participation of individuals in electoral processes via the platform of political parties and the refusal to recognize independent candidacy violate the provision of Article 13 of the African Charter and thereby constitutes a violation of their human rights to participate freely and directly in the government of their country.

51.The Defendant rebuts this allegation and argues that its electoral laws are in conformity with Article 13 of the African Charter. The Defendant again submits that the rights provided for under Article 13 are not absolute but subject to the consideration and obedience to law previously laid down which the Plaintiffs are subject to. The Defendant argues tnat it has a well-considered legal regime for electoral matters and therefore where the alleged violation was as a result of the plaintiffs' breach of any existing electoral laws, the Plaintiffs cannot pray this Court to invoke Article 13 in their favour.

52.lt is important at this stage to reproduce the two laws in contention. It is provided under Section 221 of the 1999 Constitution of the Federal Republic of Nigeria as follows:

"No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election/'

  1. Article 13 of the African Charter on Human and peoples' Rights reads as follows:
  1. 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.
  2. Every citizen shall have the right of equal access to the public service of his country.
  3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

It is pertinent to state that Article 21 of UDHR and Article 25 of ICCPR are in pari-materia with the Article 13 of tie African Charter. Therefore the determination of the Plaintiffs' rights as protected under Article 13 of the African Charter mutatis mutandis amounts to determination of same under the UDHR and ICCPR.

  1. To find a breach of this provision, national authorities must act in total contravention of the choices made available in the statute. They are not bound by this provision to apply both conditions, the application of one or the other will be sufficient and in compliance with the provision of the words of the charter "either directly or through".
  2. Again, it is trite principle in all jurisdictions where international law is applicable that in the interpretation of treaties, wherever the term in "accordance with the law" appears, it is usually in reference to the

"domestic or national law" of the state party to the treaty as the case may be. It is also commonly agreed in all jurisdictions of the world that national or state parties enjoy a very wide margin of appreciation/flexibility/leverage in the application of their laws in the determination of what is in accordance with the law (so long as the law is not arbitrarily applied), because national authorities know and understand their citizens and territory better.

  1. Where applicable, to determine whether or not the extant laws of a state party are in conformity with the provision of international treaties and to avoid arbitrariness, such national laws are usually subjected to any of the following tests that may be applicable to the situation like; proportionality, reasonableness, foreseeability, legitmate purpose and whether it is necessary in a democratic society as the case may be. It must be noted that not all the above stated tests may be applicable in all situations as it will depend on the peculiarity of a given case in its application.
  2. The European Court of Human Rights gave a very useful hint in the application of some of the relevant tests as stated above in the case of BREYER v. GERMANY 50001/12/Judgment (Merits and Just Satisfaction)/Court (Fifth Section) 30/01/2020 where it held that;

"According to the Court's established case-law, the requirement that an interference be "in accordance with the law" does not only mean that the measure in question should have seme basis in domestic law, but also that the law should be accessible to the person concerned and foreseeable as to its effects."

“Necessary in a democratic society"

"An interference will be considered "necessary in a democratic society" for a legitimate aim if it answers a "pressing social need" and if it is proportionate to the legitimate aim pursued."

58.In the case of SEYIDZADE v. AZERBAIJAN (Application no. 37700/05) JUDGMENT STRASBOURG 3 December 2009, the same Court held as follows:

"In examining compliance with Article 3 of Protocol No. 1, the Court does not apply the tests of "necessity" or "pressing social need"; instead, it has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people"

59.lt is important to state here that the Article 3 of Protocol No. 1 of the European Convention is in pari-materia to Article 13 of the African Charter, which is the provision in contention in this case. Again, considering the relative younger age of this Court vis-a-vis other international courts, it has enormously benefitted from the external aids to interpretation particularly, foreign judgments i.e. judgments of other international courts and tribunals where the issues concern interpretation of provisions of statutes in pari materia. Though of persuasive effect, this Court has resorted to pronouncements of such courts of no mean standing like the European Court of Human Rights and African Court of Human Rights in carving its own jurisprudence.

60.In order to determine whether there has been a violation of human rights where a drawback clause "in accordance with the law" like that of Article 13 of the African Charter is applicable, the Court must advert its mind to the following two caveats:

  1. That such right is not absolute;
  2. Whether in its interpretation or application by the national authorities, the citizens are left with any option of choice of how to exercise such right without interfering with the free expression of the opinion of the people. In other words, are there any alternatives available to the Plaintiffs to exercise their right in accordance with the law.

In the instant case, the answer to all the above stated caveats are in favour of the Defendant.

We explain the two caveats stated herein.

  1. On the issue of the right not being absolute:
  1. The right to participate in the government of one's country as provided for under Article 13 of the African Charter is not absolute due to the draw back clause that gives the state party the leverage to enact laws to streamline the realization of individual aspirations of participating in the government of the state.
  2. This Court in addressing this issue also takes cognizance of the basic rule of

interpretation to the effect that the tex: of a statute must be interpreted to give effect to its plain meaning. The relevant portion of Article 13 (1) of the African Charter which guarantees the right of the citizenry to participate in the government of their country reads: “           either directly or through freely chosen representatives in accordance with the provisions of the law."


  1. The Court's appreciation of the aoove phrase in its simple grammatical construction, connotes a choice of one or the other and comes to the conclusion that so long as the choice made falls within the parameters of the options provided for in the Charter, the defendant will be acting in accordance with its wide margin of appreciation as one in a position to know what is best suited for the Country. The Court therefore concludes that the rights of political participation as enshrined in Article 13 of the African Charter is not absolute, therefore Section 221 of the Defendant's Constitution is not at variance with the provision of the Charter, consequently there is no violation of the rights of the Plaintiffs to freely, directly or indirectly participate in the government of their country.
  1. On the issues of options available to the Plaintiffs:
  1. The interpretation and application of the extant laws of the Defendant in relation to citizens' participation in government gives wide range of options to any aspiring citizen for political and executive office of the state. The Plaintiffs have other alternatives of exercising their right to participate in the government of their country without necessarily standing for an election as an independent candidate.

65.In the European Court of Human Rights' case of M.N. AND OTHERS v. SAN MARINO 28005/12 | Judgment (Merits and Just Satisfaction) | Court (Third Section) | 07/07/2015, it was held that:

"The Court has consistently held that the Contracting States have a certain margin of appreciation in assessing the need for an interference, the Court further considers that the measure pjrsued various legitimate aims, namely, the prevention of crime, the protection of the rights and freedoms of others. and also the economic well-being of the country. It remains to be determined whether the measure, as applied to the applicant, was necessary in a democratic society and in particular whether it was accompanied by the relevant procedural safeguards."

  1. The above cited decision of the Strasbourg based Human Rights Court reiterated an established rule that in censoring national laws that have been alleged to be in violation of international human rights Conventions, it is unlikely that violation of human rights will suffice when states exercise their powers under the margin of appreciation in accordance with the relevant provision of the law. This more so where the necessary tests and safeguards have been considered in the interest of the general society and the law is not restrictive or arbitrary in nature.
  2. As already stated, the state party enjoys a wide margin of appreciation because they know best and they are in a better position to determine what is reasonable, practicable and applicable in their special circumstances. It is not in the place of the citizens to choose or determine what they think is best, because if everyone had that choice, the state of anarchy will set in and the test of what is necessary for the society would fail. It is therefore the preserve of the government to make a choice based on the reasonableness test - the application of which varies from state to state.
  3. The European Court of Human Rights again emphasized the above position when it held in its jurisprudence in the case of SEYIDZADE v. AZERBAIJAN (Application no. 37700/05) JUDGMENT STRASBOURG 3 December 2009 : in which the applicant's request for reg stration as a candidate was refused on the basis of Article 85 (II) of the defendants State's Constitution, which banned "clergymen" from being elected to parliament, and Article 14.2.4 of the Electoral Code, which made "clergymen" ineligible to serve as members of parliament while they were engaged in "professional religious activity. The court held as follows:

"Stricter requirements may be imposed on the eligibility to stand for election to parliament, as distinguished from voting eligibility. States have broad latitude to establish constitutional rules on the status of members of parliament, including criteria for declaring them ineligible. These criteria vary according to the historical and political factors specific to each State. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another."

  1. Also, In the separate opinion of the Vice President of the African Court of Human Rights in the case of REV. CHRISTOPHER R. MTILIKA AND TANGAYIKA LAW SOCIETY v. THE UNITED REPUBLIC OF TANZANIA - APPLICATION NO: 09/2011 AND 11/2011, Judgment of 14th June, 2013, the Judge said that:

"I am of the view that barring independent candidates from certain elections and the correlative obligation to belong to a political party are not in themselves violations of articles 10 and 13 (1) of the African Charter; they can only be violations of such provisions if they are considered unreasonable or illegitimate limitations to the exercise of the rights enshrined in the said provisions."


70. In the light of the foregoing analyses, and in the application of all the above cited persuasive jurisprudence, the option of the Defendant State; The Federal Republic of Nigeria, which is indirect participation through membership of any registered political parties in the country cannot be faulted as a violation of the citizens' right to participation in the government of the country. This position is further fortified with the possibility of registration of new political parties upon fulfilment of the set criteria for registration by any person or group of persons who nurture ambition to aspire to any political office.

71. The Plaintiffs in this case have the option of expressing their participation in government through the platform of any political parties of their choice or at best as an alternative they could register their own political party to have direct access to participate in government through the electoral process. The barring of independent candidates by the Defendant from political elections and the correlative obligation to belong to a political party as a means of realizing one's political aspirations was neither without justification nor arbitrarily instituted. The Defendant opted for this choice being in the best position to know in the exercise of its wide margin of appreciat on, what is most suitable forthe country for the purpose of maintenance of law and order, what is reasonable and necessary for a democratic society like Nigeria based on the historical evolution of the country. Such an interference in the enjoyment of the right to participate in the Defendant's government is not and cannot be considered as a violation.

72.ln the case of YASAR v. ROMANIA 64863/13 | Judgment (Merits and Just Satisfaction) | Court (Fourth Section) | 26/11/2019: The applicant, a Turkish national who owned a vessel which had been used for illegal fishing activities in the Black Sea, complained that the confiscation of the vessel was disproportionate in view of its high value and the absence of any proven environmental damage. Determining whether the interference was in the public interest, the Court held:

"'The Court reiterates that in order to be compatible, an interference must be effected "in the public interest” and "subject to the conditions provided for by law and by the genera principles of international law". The interference must strike a "fair balance" between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. In so determining, the Court recognizes that the State enjoys a wide margin of appreciation with regard to the means to be employed and to the question of whether the consequences are justified in the general interest for the purpose of achieving the objective pursued. In view of the above, the Court sees no sign of arbitrariness in the interpretation in question concerning the applicable domestic law"

73.In a similar vein, this Court sees no arbitrariness in the application of the provision of Section 221 of the Nigerian Constitution in its present form and consequently, the submission of the Defendant that its electoral laws, particularly Section 221, are in conformity with the provisions of Article 13 of the African Charter is upheld.

  1. The Defendant State, Nigeria prides itself with a population of over two hundred million people with registered political parties numbering ninety-two (92) at the time of the filing of this action by the Plaintiffs, one can imagine a situation in which every adult citizen of voting age decides to stand as an independent candidate in an election, the task to manage the electoral process will be humongous. It is to avert these apparent impossibilities that the Defendant has therefore in accordance with its extant laws, exercised its wide margin of appreciation by asking citizens to participate in governance through the platform of registered political parties of their choice. This option which is not arbitrary and is in accordance with the relevant provision of the law, is in conformity and not at variance with the provisions of Article 13 of African Charter.
  1. By virtue of Article 1 of the African Charter, to which the Defendant is a signatory, the Defendant is under the obligation to recognize the rights enshrined in the Charter and adopt legislative or other measures to give effect to them. In other words, the Defendant is obliged to protect the human rights of its citizens inclusive of the Plaintiffs in the instant case, as guaranteed under the African Charter and prevent their violations even by private actors. The Defendant's law- Section 221 in its present form is not at variance with the provisions of Article 13 of the African Charter as being claimed by the Plaintiffs.
  2. Further, under the obligation of state to make its law in conformity with its obligations under International Conventions, the Defendant is allowed to apply implied limitation except where expressly forbidden. The European Court of Human Rights explained this concept in the case of SEYIDZADE v. AZERBAIJAN (Application no. 37700/05) JUDGMENT STRASBOURG 3 December 2009, where it held in the interpretation of the import of Article 3 Protocol 1 of the European Human Rights Convention - which; as already stated; is in pari- materia with Article 13 of the African Charter as follows:

"The Court has established that this provision guarantees individual rights, including the rights to vote and to stand for election. As important as those rights are, they are not, however, absolute. Since Article 3 recognizes them without setting them out in express terms, let alone defining them, there is room for "implied limitations", and contracting States have a wide margin of appreciation in this sphere. In their internal legal orders they may make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3."

77. In the instant case, the establishment of political parties and enjoining citizens to participate in election by means of such political parties as a way of taking part in the government of their country, is not expressly forbidden provided such obligation is in accordance with the law as stated in the provision of the Article 13 of the Charter.

78. Again, independent candidacy on its own is not a guarantee or short cut to direct participation; to become a legislator or a member of the executive, the individual must still contest in a competitive election. Therefore, competing either through political parties or independent candidacy is not a guarantee or access to direct participation in government and the Court so holds.

79. In the Inter-American Court of Human Rights (Judgment of 6 August, 2008) in the case of CASTANEDA GUTMAN v. MEXICO at paragraph 193, the Court held:

"The Court considers that the State has justified that the registration of candidates exclusively through political parties responds to compelling social needs based on diverse historical, political and social grounds. The need to create and strengthen the party system as a response to an historical and political reality; the need to organize efficiently the electoral process in a society of 75 million voters, in which everyone would have the same right to be elected; the need for a system of predominantly public financing to ensure the development of genuine free elections, in equal conditions, and the need to monitor efficiently the funds used in the elections, all respond to essential public interest. To the contrary, the representatives have not provided sufficient evidence that, over and above their statements regarding the lack of credibility of the political parties and the need for independent candidacies, would nullify the arguments put forward by the State."

80. Further, the Plaintiffs' argument in response to the Defendants statement of defence and legal submissions, is replete with the decision of the African Court of Human Rights in the case of REV. CHRISTOPHER R. MTILIKA AND TANGAYIKA LAW SOCIETY v. THE UNITED REPUBLIC OF TANZANIA - APPLICATION NO: 09/2011 AND 11/2011, merit Judgment of 14th June, 2013, a case in which the Court ordered the Tanzania State to amend its constitution. The Plaintiffs contend that this decision is binding on all member states.

81. lt is pertinent to quickly clarify that while this court draws inspiration from the rich, flourishing and persuasive jurisprudence of the African Court of Human Rights and other reputable International Courts, this Court is not bound to follow their decisions. This position is further strengthened where the circumstances and peculiarity of the cases differ in all material sense. In the context of the Tanzanian case, the Applicants combined the rights envisage under Article 13 with the freedom of association. The instant case is distinguishable because, in the case cf Tanzania, there is restriction on the Applicants to join only two political parties and no other choice of association, however in the present case of Nigeria, there are many political parties the Plaintiffs have the choice of joining or better still the choice of forming their own political party is also available. The factsand situations are not exactly the same.

The peculiarity of the Tanzanian case occasioned that judgment because of the restriction placed on freedom of association.

  1. In sum, after a careful study of the pleadings before this court as well as the persuasive precedents from other international courts with similar jurisdiction, it is the conclusion of this Court that the provisions of the Defendant State's Constitution affords it a wide margin of appreciation that enjoins it to operate the way it does with respect to its electoral laws.
  2. It is clear that the Defendant's electoral legal regime does not stifle or restrict the right of the Plaintiffs to participate directly or indirectly in the elections of the country. The drawback clause in Article 13 of the African Charter amply puts the national authorities in the best position to enact local laws in accordance with the Charter to address peculiar circumstances. The proper exercise of that mandate does not amount to violation of their obligations as signatories to the African Charter. The Court therefore holds that the Defendant is not in breach of its community obligations as enshrined in the African Charter.
  3. Consequently, the Court cannot compel the Defendant to amend its Constitution in abstracto where there have not been any proven violation of Plaintiffs' right as a results of the prov sions of the Constitution and the Court so hold.

DECISION

  1. For the reasons stated above, the Court, adjudicating in a public hearing, after hearing both parties, and their submissions duly considered in the light of the African Charter on Human and Peoples' Rights and other international human


rights instruments, and also the Protocol on the Court as amended and the Rules of Court, herby declares as follows:

As to jurisdiction of the Court:

i. Adjudges that it has jurisdiction to entertain the suit.

ii. Adjudges that the plaintiffs’ suit is not statute barred and declares same admissible.

As to merits of the case:

  1. Adjudges that the Plaint!ffs have not established their claim.
  2. Adjudges further that Section 221 of the Defendant’s 1999 Constitution as amended is not an infringement on the Plaintiffs' right to participate freely in the government of their country, either directly or through freely chosen representatives in accordance with the provisions of the law.

iii. Consequently, the Plaintiffs’ case is hereby dismissed in its entirety.

 

ORDERS:

i. Parties are to bear their respective costs.

 

AND THE FOLLOWING HAVING APPENDED THEIR SIGNATURES

Hon. Justice hdward Amoako ASANTE

Hon, Justice Keikura BANGURA

Hon. Justice Januaria T. Silva Moreira COSTA

 

ASSISTED BY:

Mr. Athanase ATANNON - Deputy Chief Registrar

 

Author
Judgment date
Case number
ECW/CCJ/APP/ 9 of 2017
Court name
ECOWAS Community Court of Justice
Judge
Atoki JA
Bangra JA
Moreira-Costa JA
Anene-Maidoh JA
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