➥ CASE SUMMARY OF:
Aliyu Tasheku v Federal Republic of Nigeria (2012) – ECOWAS
by “PipAr” B.C. Chima
ECOWAS – ECW/CCJ/RUL/12/12
➥ JUDGEMENT DELIVERED ON:
12th day of June 2012
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ RES JUDICATA OPERATES WHERE APPLICATION IS SAME AS ONE ALREADY DECIDED SATISFACTORILY
Para. 13: “The Court is of the view that the argument concerning res judicata can only succeed when it is established that the Application brought before it is essentially the same as another one already satisfactorily decided upon before a competent domestic court.”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Benfeito Mosso Ramos
Hon. Justice Clotilde Médégan Nougbodé
Hon. Justice Eliam Potey
⦿ FOR THE CLAIMANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
By Application dated 10 June 2011 and received at the Registry on 13 June 2011, Mr. Aliyu Tasheku, through his Counsel, Chino Edmund Obiagwu, lawyer registered with the Nigerian Bar, brought a complaint against the Federal Republic of Nigeria, for violation of Articles 4, 5, 6 and 12 of the African Charter on Human and Peoples’ Rights.
He asked the Court for:
(i) A declaration that his arrest and detention since 20 September 2010, without regard for the order of release made by the Presiding Judge of the Abuja Magistrate Court, is arbitrary, illegal and illicit; and that they constitute a violation of his right to personal liberty and freedom of movement as guaranteed by Articles 6 and 12 of the Charter;
(ii) A declaration that the denial of medical care during his detention and the bad conditions in which he was detained constitute a threat to his fundamental right to health and a violation of his right to human dignity as guaranteed by Articles 4 and 5 of the said Charter;
(iii) An order that the Federal Republic of Nigeria must release him forthwith;
(iv) An order that the Federal Republic of Nigeria must pay to him the sum of Ten Million Naira (N 10,000,000) as damages, for the violations suffered.
The Federal Republic of Nigeria, through its Counsel, F. F. Bebu Esq., lawyer registered with the Nigerian Bar, lodged at the Registry of the Court, on 23 January 2012, its Defence, whereby it contended that the Plaintiff’s Application was inadmissible on the grounds that it was ill-founded and inconsistent with the requirements of res judicata. Further on, on 22 February 2012, he raised, on preliminary grounds and in a separate pleading, the lack of jurisdiction of the Court to adjudicate on the case brought before it, by virtue of the force of res judicata.
➥ ISSUE(S) & RESOLUTION
I. Whether this ECOWAS Court has Jurisdiction?
RULING: YES; IN CLAIMANT’S FAVOUR.
Para. 8 – : “The Application before the Court deals with human rights violation, notably violation of Articles 4, 5, 6 and 12 of the African Charter on Human and Peoples’ Rights. The Court has indicated on several occasions that it has jurisdiction to adjudicate on a case once the matter brought relates to human rights violation and where the subject-matter of the application is to ask the Court to find that such violation has occurred in a Member State (cf. Hissein Habré v. Senegal, Judgment of 14 May 2010, paragraphs 53, 58 and 59; Case Concerning Alhaji Muhammad Ibrahim Hassan v. Gombe State and Nigeria, Judgment of 15 March 2012, paragraph 38). Consequently, the case brought before the Court falls indeed within its scope of competence as provided for by the new Article 9(4) of its Protocol, as amended by the 19 January 2005 Supplementary Protocol, which provides: “The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.” The Court is therefore competent to sit on the Application brought by Mr. Aliyu Tasheku.”
II. Whether the application is caught by Res Judicata?
RULING: YES; IN RESPONDENT’S FAVOUR.
Para. 17 – 18: “In this light, the Court notes that Articles 34, 35, 36, 41 and 42 of the Constitution of Nigeria sanctions respectively: (1) the right to human dignity (2) the right to personal liberty (3) the right to fair trial (4) the right to free movement (5) the right to non-discrimination. The Court equally notes that Articles 4, 5, 6 and 12 of the African Charter on Human and Peoples’ Rights sanctions respectively : (i) the inviolability of human beings and the prohibition to deprive same arbitrarily (ii) the right to respect for human dignity inherent in human beings and the recognition of legal status (iii) the right to liberty and security of person and the circumstances within which those rights may be curtailed, and finally (iv) the right to freedom of movement and choice of residence. The Court notes finally that the Applicant essentially alleges violation of his right to liberty and freedom of movement contained mutatis mutandi in Articles 35 and 41 of the 1999 Constitution of Nigeria, and that he also alleges violation of his right to life and human dignity, sanctioned mutatis mutandi by Article 34 of the said Constitution. Thus, the human rights violations alleged before the Nigerian judge are essentially the same as the human rights allegations brought before the Honorable Court. Besides, the Applicant pleads before the Honorable Court, his release and the payment of Ten Million Naira as damages, requests which have equally been granted by the Nigerian judge.”
Para. 19: “The Court therefore deduces from the foregoing, that the Application brought by Mr. Aliyu Tasheku is essentially the same as the one filed before the Nigerian judge, which subject-matter has already been dealt with and which outcome the Applicant neither contested nor considered to be dissatisfactory since he did not appeal the judgment before any Nigerian 7 court. The Applicant did not also indicate that the Nigerian authorities refused to implement the decisions made by the judge at the High Court. Equally, he brought forth no new complaint or new application that may be entertained by the Honorable Court. The Court cannot retry a case on which a judgment of the domestic court of a Member State has already been delivered and against which no contestation has been raised. Consequently, the Court declares that the Application brought by Mr. Aliyu Tasheku is inadmissible.”
Para 20: “The Court, Adjudicating publicly, after hearing both Parties, and after deliberating towards this ruling, Adjudges that the Court has jurisdiction to adjudicate on the case; Adjudges that in the instant case, the Application brought by Mr. Aliyu Tasheku is essentially the same as the one already decided upon by the Nigerian court; Adjudges, consequently, that the Application is inadmissible.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)