➥ CASE SUMMARY OF:
Musa Saidykhan v. The Gambia (2010) – ECOWAS
by “PipAr” B.C. Chima
➥ COURT:
ECOWAS – ECW/CCJ/JUD/08/10
➥ JUDGEMENT DELIVERED ON:
16th December 2010
➥ AREA(S) OF LAW
Burden of proof.
Torture.
Journalism.
➥ NOTABLE DICTA
⦿ PLEADINGS SHOULD BE CONCISE PRESENTATION OF FACTS
Para. 12: “The court reiterates that the pleadings should be confined to a concise and precise presentation of facts and brief summary of evidence in support including references to documents. All arguments shall be reserved for the oral phase of the proceedings. Reference is hereby made to Articles 33 and 35 of the Court’s Rules of Procedure.”
⦿ A PLAINTIFF WHO CANNOT DISCHARGE BURDEN OF PROOF MUST LOSE
Para. 28: “This rule, that proof rests on he who asserts the affirmative and not on he who denies, “is an ancient rule founded on consideration of common sense and should not be departed from without strong reasons”, according to Lord Maugham in the case of Constantine Line v. Imperial Smelting Corporation (1942) A.C. 154 at p. 174. In assuming the burden of proof, it means that if at the end of the day the plaintiff has not produced evidence to discharge the burden on him he must lose the decision on the particular issue. However, being a civil matter the burden that the plaintiff assumes is one of a proof by preponderance of probability or sometimes called reasonable probability.”
⦿ ONE WITNESS CAN TESTIFY – IT ALL DEPENDS ON CREDIBILITY & EVIDENCE ADDUCED
Para. 29: “The plaintiff testified on this issue by himself. No witness was called. Before we proceed the court has to state that failure to call a witness does not derogate from the evidence adduced by one person only, nor does it prevent the court from accepting and relying on the evidence of a sole witness. It all depends on credibility and the nature of the evidence adduced. And also as decided in the case of Morrow v. Morrow (1914) 2 I.R. 183 in a civil case where such testimony is unimpeached the court should act on it.”
⦿ DESPERATE SITUATIONS CALL FOR DESPERATE MEASURES – JUMP BAIL
Para. 35: “Counsel for the defendant also submitted that the fact that the plaintiff’s brother secured his bail with an expired passport and the fact that plaintiff jumped bail throw the plaintiff’s character into doubt so the court should not believe him. This argument too is untenable. Desperate situations call for desperate measures. Who would not have acted the way the plaintiff did given the situation that he found himself in? Even if he had succeeded in escaping from the National Intelligence Agency detention centre without bail he would have been justified. The court rejects the call to declare the plaintiff as a person of bad character since he was justified in using every reasonable means to secure his freedom and flee for safety.”
⦿ EXPERT IS PERMITTED TO GIVE AN OPINION BASED ON HEARSAY
Para. 40: “It is common knowledge that an expert’s opinion is usually based on his training and experience. In law an expert is permitted to give an opinion on the basis of hearsay information, provided that it relates to specific matters of which he does have personal knowledge. Thus a doctor can give evidence of what he was told by a patient about his condition for the purpose of evaluating his diagnosis; though his testimony is inadmissible to show what symptoms were actually being experienced by the patient; see R. V. Bradshaw (1985) 82 Cr. App. R. 79, CA.”
⦿ OBJECT OF AWARD OF DAMAGES IN HUMAN RIGHTS CASES
Para. 43: “In the case of Chief Ebrimah Manneh v. Republic of The Gambia, supra, decided on 5th June 2008, this court set out some principles that will guide it in the award of damages. Though by no means exhaustive, the principles set out in that decision are relevant to this case. Principally the object of an award in human rights violation is to vindicate the injured feelings of the victim and to restore his rights and human dignity. Monetary compensation may also be awarded in appropriate cases but the objective of such an award must not be punitive. The following cases decided by the European Court of Human Rights are of relevance to this discussion on damages: Ahmed Selmouni v. State of France (2005) CHR 237; and Miroslav Cenbauer v. Republic of Croatia (2005) CBR 424 , where the court awarded damages in circumstances similar to the present case, wherein the plaintiff was tortured.”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Hansine N. Donli
Hon. Justice Awa Daboya Nana
Hon. Justice Anthony A. Benin
➥ APPEARANCES
⦿ FOR THE CLAIMANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The plaintiff complained of violation of his human right to personal liberty, dignity of his person and fair hearing guaranteed by Articles 1, 5, 6 and 7 of the African Charter on Human and Peoples’ Rights (ACHPR). From the narration of the facts, the plaintiff was the Editor of The Independent newspaper based in Banjul, The Gambia. According to the plaintiff, his newspaper published the names of alleged coup plotters on 21 st March 2006. Six days later, to be precise on 27[[sup]]th March 2006, he was arrested at night by a combined team of armed soldiers and policemen, without a warrant of arrest. They took him to a detention centre in the headquarters of the National Intelligence Agency in Banjul. For the next twenty-two (22) days, the plaintiff claimed he was held totally incommunicado.
He was released on bail, yet the security officers continued to put him under surveillance and this put his wife, aged mother and junior brothers to fright. The situation became unbearable so he and his wife decided to flee the country for security reasons. Therefore on the night of 13th May 2006 they fled the country an arrived in Dakar. Senegal on 15th May 2006.
However, the defendant has continued to harass and intimidate his family members in Banjul, especially his brother who stood surety for his bail. He stated that it was in Dakar that he received medical attention at the expense of Amnesty International.
The defence consisted largely of a complete denial of all the averments contained in the initiating application. The defendant denied any knowledge of the publication of the names of coup plotters and denied sending any security agents to arrest any journalists. The defendant further stated they did not receive any reports of any arrests, detention or torture and put the plaintiff to strict proof.
➥ ISSUE(S) & RESOLUTION
I. Whether or not the plaintiff was arrested and detained by agents of the defendant?
RULING: IN CLAIMANT’S FAVOUR.
Para. 33: “Having regard to the detailed narration of events and their consistency it is difficult to say that the plaintiff was just framing up a story. The reasons he said were given by the security agents for arresting him were all matters which in fact occurred and for which he was the actor and author. So they were not falsehoods. That led the defence counsel to say that even if the plaintiff was arrested by the defendant’s agents, his acts and conduct called for it. This was some kind of justification, which is belated since the defendant did not admit the acts complained of in the first place. In other words, justification must be pleaded before the court could consider any facts or submission in support thereof. And even if justification had been properly raised in the defence, it would not justify an arrest without warrant, detention for 22 days 5 without trial and without recourse to Counsel even under the 1997 Constitution of The Gambia, chapter IV thereof.”
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II. Whether or not the plaintiff was tortured whilst in detention?
RULING: IN CLAIMANT’S FAVOUR.
Para. 38: “In the absence of any facts and circumstances from which the court can say the plaintiff was not speaking the truth, and as the evidence stands unimpeached, the court is able to accept the plaintiffs evidence and find the plaintiff was tortured by the defendant’s security agents while in detention.”
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III. Whether or not the plaintiff sustained any harm or injury, physical or otherwise; if so, whether or not plaintiff received medical treatment for any physical injury?
RULING: IN CLAIMANT’S FAVOUR, in part.
Para. 41 – 42: “The evidence of the plaintiff on the wounds was direct and credible enough for this court to accept it. It is more probable than not that a person who has been detained and beaten for 22 days would suffer some form of physical harm. The court therefore finds as a fact that the plaintiff suffered physical injuries as he testified to. The court also finds as a fact that he underwent medical treatment in Dakar. Concerning the medical treatment in the USA, having regard to the time lapse between the events and the treatment, there ought to be evidence of a direct link between the torture and the treatment. The court is not very certain about this. The medical reports-Exhibits D6-D8 do not provide any conclusive proof of the link between the torture that took place over two years before the treatment.”
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IV. Whether or not plaintiff is entitled to damages or compensation from the defendant?
RULING: IN RESPONDENT’S FAVOUR.
Para. 45: “The court is unable to find that it is more probable than not that the plaintiff has lost his manhood. In such a scenario of uncertainty or doubt, the case of Rhesa Shipping Co. SA v. Edmunds, otherwise called The Popi M. (198) 2 All E.R. 712 at p. 718 per Lord Brandon, decides that the party on whom lies the burden of proving the existence of the fact should fail. In view of the foregoing, the court is unable to conclude that the plaintiff has lost his manhood as he claimed. Consequently, the court will not consider it as a factor in awarding damages or compensation.”
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✓ DECISION:
Para. 46 – 47: “Having regard to Article 4(g) of the ECOWAS Revised Treaty, which enables the court to apply the ACHPR, and having regard to the following provisions of the ACHPR: Article 5-prohibition against torture; Article 6-prohibition against unlawful arrest; Article 7(b)-presumption of innocence until proven guilty; Article 7(d)-right to be tried within a reasonable time; and having regard to the findings of fact made herein, the court decides that the plaintiff has established his case that he was arrested, detained and tortured by the defendant’s agents for 22 days, without any lawful excuse and without trial. Consequently, the court grants Reliefs (a), (b) and (c) set out above. There is no satisfactory evidence that the plaintiff’s family is being harassed or intimidated so the court refuses to grant Relief (d). On Relief (e) the court decides to award the plaintiff damages in the sum of two hundred thousand US dollars (US$200,000.00).”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
