Counsellor Kabineh Muhammad Ja'neh v Republic of Liberia and Another (ECW/CCJ/APP/33/19/REV; ECW/CCJ/JUD/13/21) [2021] ECOWASCJ 31 (4 June 2021)

C'OvfMUNlTY COURT OF J USTICE, ECOWAS COUR DE rns·, ICE DE LI\ COMMl; NA rF,, CEDEAO TR[[lL,'),IAL DE JUSTJC;\ DA COMM l JNll)/\DE, CEDEAO No. 10 DAR F,S SALAAM CRESCENT OFF AMINl l K1\NO CRESCE:-;T, WUSE II. ABUJA-NIG ERIA. PMO 567 C,1\RKJ, ABUJA TEL: 234-9-78 22 80 l \. VebsiH:: WW\ t\ court,•cowas. orl!, IN THE COJVIMUNITV COURT OF JUSTICE OF THE ECONOIVIJC COJ\'.lMUNITY OF \VEST Al<'RICAN STATES (ECO\VAS) In the ]\.,fatter of COUNSELLOR KABlNEH /\,1UHAl\'I:\1AD JA'NEI-1 V REPUBLIC OF LIBERIA & ANOR Application No. ECfVICCJ/APP/33//9/REV Judgment No. ECfVICCJIJUD/13/21 JUDGJ!ENT ABUJA 4 JU NE2021 COUNSELLORKABTNEB IVIUHAIVJMADJA'NEH - APPLICANT V. REPUBLIC OF LIBERIA & ANOR RESPONDENTS CO!VIPOSITION OF THE COURT: Hon. Justice Gberi-Be OUATf ARA - Presiding Hon. Justice Dupe ATOKI - Member/Judge R.appotteur Hon. Justice Januaria T. Silva Moreira COST A - Member ASSTSTE]) BY: Mr. Tony ANENE- MAIDOH - Chief Registrar REPRESENTATION OF PARTIES: Femi FA. LANA (SAN) Femi ADEDEJI, Esq Cllr. Emmanuel B. JAMES Cllr. J. Laveli SUPU\. VOOD Cllr. L. Koboi JOHNSON Cllr. Sayma Syrenius Cephus Cllr. Lafayette B GOULD, Sr. Counsel for Applicant Counsel for the Respondent: I. JUDG1lrfl:,1VT I. This is the judgment of the Court delivered virtually in open court pursuant to Article 8(1) of the Practice Directions on Electronic Case Management and Virtual Cou1t Sessions, 2020. II. DESCRJPTIOlV OF THE PARTIES 2. The Applicant is Counsellor Kabineh Muhammad Ja'neh a citizen and a retired Associate Justice of the Supreme Court of the Republic of Liberia and a Community citizen (Hereinafter refen-ed to as the "Applicant"). 3. The first Respondent is the Republic of Liberia, a l\ilcmber State of the Community and State Party to the African Charter on Human and Peoples' Rights. (Hereinafter refeJTed to as the "Respondent"). 4. The second Respondent is Judge YussifD. Kabba a citizen of the Republic of Liberia and a Community citizen. Ill. lNTRODUCTIOlV 5. This 1s an Application for Review of Judgment Number: ECW/CCJ/JlJD/28/20 Kabineh Muhammad Ja'neh v Republic of Liberia, delivered on IO November 2020 wherein the Respondent was found in v iolation of the Applicant's rights to fair hearing and to work arising from his removal from office as Associate Justice of the Supreme Court ofLibeiia by the Senate oftnc Republic of Liberia. IV. PROCEDURE BEFORE THE COURT 6. The Respondent filed the Applicat:on for Review of Judgment of the Court on l Febrnary 2021 and same was served on the Applicanl. 7. The Respondent also filed a Motion for Preliminary Objection on I February 2021, which was also served on the Applicant. 8. The Applicant filed his responses to the Respondent's Application for Review of the Judgment of the Court and its submission opposing the Preliminary Objection of the Respondent on 5 March 2021. These processes were served on the Respondent on 8 March 2021. 9. The Court heard the Parties' oral submissions on 18 l'vfarch 2021 and adjourned the case for judgment to 4 June 2021. V. RESP01VDJ:,1VT'S CASE a) Summary of facts l 0. The Respondent's Application is based on Judgment No EC\V/CCJ/J UD/28/20 Kabinch lVfohammad Ja'nch v Republic of Liberia, delivered on I 0 November 2020 (hereinafter referred to as the "said Judgment"). The Applicant therein claimed that his rights were violated as a result of his impeachment by the Honourable House of Representatives and subsequenl removal from office by the Senate of the Rep ublic of Liberia as Associate Justice of the Supreme Court of the Republ ic of Liberia, follcwing a trial in which he was represented. 11. The Respondent contested the Applicant's claim and sought the Cou1t to dism iss same cla iming that the Court lacked jurisdic tion to adjudicate on the matter which are political in nature and equally Jacked the competence to interpret and apply domestic laws of Member States, as this would amo unt to the Court assuming the ro le of an appe!Iate body over political actions. 12. After its deliberations on the submiss ion of the Parties, the Comt delivered its judgment on IO November 2021, in which it found the Respondent in violation of the Applicant's right to a fair hearing and the tight to work. The Court then ordered the Respondent to restore all the Applicant's withheld entitlements including salaries, allowances and pension benefits from the day of his indictment; reinstate the Applicant to the position of Associate Justice of the Supreme Court or in the alternative, grant him the right to resign from office with the fu ll pension benefits; and pay him the sum of two hundred thousand US Dollars ($200,000), as reparation fi)r the moral prejudice caused to the Applicant. 13. The Respondent in the instant Application for Revision of the said Judgment filed on I February 2021, submits that the entire Judgment of the Cou rt should be set aside on the grounds hat it violate!> the legislative sovereignty of the Respondent. Additionally, that the Court erred severally in its application of facts and law in lh~ said Judgment. These grounds were captured in 52 paragraphs of the Application for review. The summary of the facts emanating from these grounds arc as follows: 1) That the judgment violates the legislative sovereignty of the Respondent; 2) The Court assumed the role of an appellate court by examining and reviewing the impeachment decisions or the National Legislature of the Respondent; 3) The Court lacked jurisdiction to examine an impeachment procedure which is political and not human rights related. b) Pleas in law 14. The Respondeni relies on Article 92 of the Rules or Court which states, "An application.for revision ()j'ajudgmenl shall be made within 1hree months of the date on which the facts on which 1he applica1ion is based came to the applicant's knowledge." c) Reliefs sought 15. The Respondent seeks the following orders: 1. A declaration that the Court committed a reversible error when it ruled awarding damages of US$200,000 to the Applicant which were not supported by any evidence or specifically pleaded, testified to, confirmed and reconfirmed on mere violation of the Applicant's "self~estcemed." (sic), for the fac.t that the said claim was never raised by the Appl icant in his entire Application; 11. A declaration that cou1t committed revers ible error when it sought to interpret Articles 43 and 29 of the Respondent's Constitution of 1986; an authority it lacks under the Protocol establishing the Court, and several opinions rendered by it; 1u. A declaration that the Cou1t committed serious reversible error when it arrogated unto itself the authority of an appellate body to reverse the decision rendered by lhe Legislature of a ivlember State after it had constitutionally conducted an impeaclunent proceedings against the Applicant and had him subsequently removed from office; 1v. In MUSA LEO KEITA V MAU (201)4-2009), the Court declared that it had no jurisdiction to adjudicate on a judgment delivered by the Court of a i\ifember State. Similarly, in SJKIRU ALADE V FEDERAL REPUBLIC OF NIG ERIA (20 12), the Court said that it docs not present itself as an appellate court over decisions of national courts. As stated a bove, this Court lacks jurisdiction to s it on appeal over decisions of National Courts or tribunals. VI. APPLICANT'S CASE a) Summary of facts 16. It is the contention of the Applicant that the Respondent is seeking to relitigate the case before this Court as the following submissions made in the initiating application were also made in Application for Review: 1. The Respondent challenged the jurisdiction of the Court; 11. The Respondent stated that the Court has no power to adjudicate on cases Lbat involve political questions or decisions that will require the Court to meddle in intenrnl politics of a Member State; 111. That the action and decision oy the Liberian Legislature in impeaching the Applicant, his trial and subsequent removal from office is not reviewable bv the Cou1t· , , rv. That by adjudicating on the matter, the Court has assumed the role of an appellate judicial body over the Liberian Legislature and Supreme Court in contravention of the Protocol on the Court. 17 . Furthermore, the Applicant argues that disagreeing with the judgment of the Court or any tribunal of justice is no legal basis to compel a review ot: or setting aside of the said judgment. IS. The Respondent has also not cited any law that is applicable to its Application to justify its entertainment by the Court. 19 . Furthennore, the Applicant averred that to warrant a rev iew of a judgment rendered by the Court, the Application must be in conformity with Article 25 of the 1991 Protocol on the Court. Th is requires that the party seeking a review must demonstrate that certain facts or set of facts of a decisive factor were inadvertently overlooked by the pa1ty seeking review of the Court's judgment, which if then considerec would have produced a different outcome in the judgment. The Applicant submits that since the Respondent has not shown that such facts of a decisive nature has come to its knowledge, its Application is baseless and shou ld be dismissed. 20. In concluding, the Applicant submits that the Application for review of the judgment should be dismissed. h) Pleas in law 2 l . The Applicant relies on the following laws: 1. 11. Articles 63 and 64 of the Rules of Court; Article 25 of the Protocol A/Pl/7/91 on the Community Court of Justice; u1. Article 4 of the Revised Treaty ofECO\VAS; c) Reliefs sought 22. The Applicant urges the Court to decline jurisdiction to hear the Application, as it is not in accordance with the Rules of Court. Vil. JURISDICTION 23. The Court holds that it has jurisdiction to adjudicate on this Application in accordance with Article 25 (1) of the Protocol (A/Pl/7/91) on the Community Court of Justice (the Protocol), which provides as fo llows: "An Application for revision for a decision may be made only when it is based upon the discove,y of some fact of such a nature as to be a decisive factor, which was, when the decision 1vas given, unknown to the Court and also to the party claiming revision, provided always that such ignorance was not due to negligence. " VIII. APPLICATION FOR PREL/1'1/NARY OBJECTION a) Summary of facts 24. The Respondent fi led an Application raising a Preliminary Objection and seeking an order of the Court lo recuse the llon . Justice Amoako Asante from adjudicating on the pending Appl:cation for Revision and in future cases where the Government of the Respondent is involved as a party. 25. The Preliminary Objection is premised on a number of alleged debasing comments made by the Ilon Justice Amoako Asante against the Respondent sequel to the delivery of the said Judgment during an interview on the radio programme of the Voice of America (VOA) 26. Below are some of the alleged offending comments ascribed to the said Judge during the radio interview; 1. The Judge is alleged to have accused the Respondent of woefully "dismissingjudges who will not dance to its tone". 11. " • .• reading political meanings into it, we didn't want this kind of impunity to happen.for politicians to have their way cause the position of" judges should be insulated all ihe times, such that politicians should not have the pendant (sic) of removing them at any time they wish, because maybe they may not be singing their songs." iii. " ... the Liberian Government has shown a certain posture that it does not actually respect the cow·/ 'sjudgment. " iv." l'Ve will keep.fighting and keep publicizing as you have done; now it's on VOA, its going all over the place .. . Liberian Government is doing this; they are removingjudges and ail that. " 27. While the Respondent averred that these comments do not represent the opinion of the Court as contained in the said Judgment, it is their opinion that they were made as a result of Hon Justice Asante's personal or political considerations, gratuitous emotions exclusively planned, designed and unleashed against the Respondent. 28. The Respondent is convinced that the comme nts are prejudicial, demeaning and comprom ises the principle of impartiality on the part of Hon Justice Asante in matters concerning the Respondent before this Court. F urthermore since the alleged statements were not grounded on issues of law raised by the Parties but poli tically motivated, his neutrality is put in question. 29. Flowing from above, the Respondent is apprehensive that the Hon Justice Asante will avert fair hearing were he to sit on the review application. While confirming that there is no precedent in the Court where a judge has been asked to recuse himself, the Respondent is of the opinion that the Court will not be wrong in ordering a recusal of Hon Justice Asante as a result of the statements credited to him on the VOA. 30. The Respondent nevertheless prays the Court to declare the Hon Justice Asante unfit to preside over the Application for Review or on any matter wherein the Respondent is a party. b) Pleas in law 31. The Respondent relies on Article 87 ( 1-5) of the Rules of the Court. c. Reliefs sougltt 32. The Respondent prays the Court to grant the following orders: 1. That the Hon Justice Asante recuses himself from any and all cases brought before this Honourable Court in which the Republic of Liberia is a party including but not limited to the pending Application for Judgment Review; 11. That the Hon Justice Asante be made to retract the said comments so ,is not to jeopardize the i_nternational image of this court and take forther corrective actions to refrain from all and any fu1ther media interview only intended to humi liate the Republic of Liberia; 111. That the Court should issue any order, or mandate indicating that the opinion expressed on the VOA docs not represent the official position of the couit in the case of Kabineh !Vfuhammad Ja'neh v Republic of Liberia, EC\. Y /CCJ/J UD/28/20. iv. Thal this Court will grant unto the Respondent all and any fu1iher relief although not specifically sought but which will be adequate and proper enough not just to restore the credibility of this court but also to repair the damage \Vhich Justice Asante 's comments have caused this court. LY. APPLICAJ. VT'S RESPONSE TO RESPO1VDENT'S PRELli'l1lNARY OBJECTJO;V ll) S11n11nm:v ofsubn1issio11 33. The Applicant in its response to the Preliminary Objection contends that the comments made by the Hon Justice Asante were not conclusive evidence of conflicts of interest to warrant a recusal of the Hon Justice Asante from sitting to review the judgment EC\V/CCJ/JUD/28/20 delivered by the Court on 10 November 2020. 34. Specifically, the Applicant oppose the Respondent's Preliminary objection on the following grounds: a. The Application was not supported by any Rule of the Cou11; b. The Application is not objectively justified; c. J\ recusal will cmount lo an abdication of duty and a violation of the solemn oath of office d. Tbe Application is not supported by any evidence that there w ill be fl.mire bias by the Hon Justice Asante. 35. Jn concluding, the Applicant states that the App lication for Review has not complied with the provisions of Article 93( 1-3) of the Rules of Court and specifically the Respondent d id not state the nature and c haracter of evidence to support its motion for recusal of Hon Justice Asante. 36. The Applicant urges the Court to dismiss the Application as being unmeritorious. h) Pleas in law 37. The Applicant relies on Chapter V, Section 2, Anicle 93( 1-3) of the Rules of Court. Analysis of tl,e Court on th e Preliminary Objection 38. The Respondent in its Preliminaiy Objection seeks an order of the Court for the recusal of Hon Justice Asan te from all future cases wherein the Respondent is a party, including the pending Application for review of the Cowi's judgment in Cllr Kabinch Muhammad Ja'nch V Republic of Liberia (supra), on the grounds that the comments he allegedly made during an interview with the Voice of America (VOA) were biased and prejudicial to the interest of the Respondent and incompatible w ith the objects of this Court. , jy ~ " AF ~ 39. The Applicant on its part, stales that the contention of the Respondent is baseless and should be dismissed. 40. A11icles 87 and 88(1) of the Rules of Court w hich deal with Preliminary Objection provides as follows: 87. I. "A party applying to the Court for a decision on a preliminary objection or other preliminary plea not going to the substance of !he case shall make the application by a separate document. 2. The Application must state 1he pleas ojfact and law relied on and the ji,rm of order sought by the applicant and any supporting documents must he annexed 10 if. 3. As soon as the application has been lodged, !he President shall prescribe a period within which the opposite party may lodge a document containing a statement c!f the form of order sough, by that party and its pleas in law. 4. Unless the Court decides otherwise, the remainder of the proceedings shall be oral. 5. The Court shall, after hearing the parties decide on the application or reserve its decision/or 1he.finaljudgment. if the Court refuses the application or reverses its decision, the President shall prescribe new time limits for the.further step in the proceedings. " 88. I) where it is clear 1hat the Court has no jurisdiction to take cognizance of an action or where the action is manifestly 1 15 #o/ inadmissible, the Court may, by reasoned order, after hearing the parties and without taking further steps in the proceedings, give a decision. 4 1.lhe Preliminary Objection of the Respondent is raised under circumstances that are as intriguing as it is strange. This has prompted the Court to expound the fundamentals of a Preliminary Objection hereunder to enable a proper understanding of its constituents. 42. The Encyclopedic Dictionary of International Law (3'd Edition), defines a Preliminary objection as follows "Any objection by the respondent to the jurisdiclion of the [International} Court [of Justice} or to the admissibility of the applica/ ion, or other objection ;he decision upon which is requested ... " 43. A publication of the International Court of Justice also described a Preliminary Objection as follows: "A preliminary objeclion is a formal step by which a respondent raises a question which it contends should he dealt with separately, be.fore any other issue in 1he proceedings is examined. This is usually, perhaps indeed necessarily on lhe basis thc11 that question is preliminary in nature; and that as a result. its resolution (in the sense contended for hy the party raising ii) will make examinalion of the rest of the case unnecessary and inappropriate. These objections are a procedural means of challenging the existence <~/ the Court's jurisdiction in a particular ca:;e . .lurisdiclional issues are however not the only mailers which may be the su!~jec/ o_(such objections: two other categories are generally recognized: objec1ions io admissibility, and 1 16 JP'Jt~ a catch-all catego,y of 'objections of a preliminary character". See CHAPTER 14, PRELIMINARY OBJECTIONS "THE INTERNATIONAL COURT OF JUSTICE" BY HUGH THIRLWA Y, OXFORD SCHOLARLY AUTHORITIES ON INTERN1\TIONAL LAW [OSi\ 11.], AND PUBLISHED OCTOBER 2016. 44. Simply put, a Preliminary Objection in the context of international law, is an objection raised by an adverse pa1ty, usually the Respondent, with the aim of drawing the attention of the Court to an irregularity in the application, or fai lure by the Applicant to follow appropriate procedures in the substantive suit tiled before the Coun. A Prelim inary Objection may challenge the jurisdiction of the Court, admissibility of an application or non-compliance with procedures laid down by the Rules of the Cou1t. \Vhen a Preliminary objection is upheld, a further consideration of the merits of the substantive application becomes otiose. 45.ln the context of this Court, Article 88 (I) of the Rules is instructive as it provides for competence of the Court and the admissibility of applications brought before it. For ease of understanding it is hereunder recapitulated; 88(1) where it is clear that the Court has no jurisdiction to hike cognizance of an actwn 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. Emphasis ours 46. The above provision clearly clarifies that the jurisdiction of the Court and admissibility of the initiating application are the basis upon which a Prelimina1y Objection can be raised. Fwther, where such objection is upheld, the application can be terminated without further action by the Court. 47. In essence, the contemplation of a Preliminary Objection is that there exists a procedural deficiency in the substantive suit that needs to be dealt with by the Court before proceeding on the merits of the case. A Preliminary objection though tied to a substantive application, does not go into the substance of the case. 48. Flowing from above, two elements are implicated in an application for a decision on a Preliminary Objection; I) Tt must relate to a deficiency in the substantive suit, which will terminate same and 2) It must be raised by the opposing party to the suit. 49. The Cou1t will briefly recount the facts upon which this Preliminary Objection is based to enable a full understanding of the concern of the Court in that regard. 50. The crux of the Application 1s premised on Judgment No EC\ViCCJ/JUD/28/20 Cllr. Kabineh ivluhammad Ja'neh v Republic of Liberia delivered on l O November 2020, where the Court found that the Respondent was in violation of A1ticles 7 and 15 of the Charter having not given the Applicant an oppo1tunity to be heard and unlawfully terminating his appointment. 51. Flowing from this, the Respondent ti led the instant two Applications; one for review of the said Judgement and the other a Preliminary Objection brought under Article 87 of the Rules of Court contesting the transparency/impartiality of Hon Justice Edward Amoako Asante and seeking an order of this Cou1t to recuse him from s itting on the current Application tor Review and any o!.her matter involving the Respondent for reasons of bias. 52. Having recalled the s ummary of the case, the Cou1t will now situate the facts with the above fundamentals to ascertain the appropriateness of the Pre) iminary Objection. a) The Preliminary Objection must relate to a deficiency in the substantive suit 53. This element presupposes two things: i) that an Applicant has filed an application for determination by the Cou1t and ii) a deficiency 111 its competence and admissibility is challenged by the Respondent. 54.lndeed the Respondent filed an a?plication for review of Judgment No EC\V/CCJ/JUD/28i20 under Articles 25 of the Protocol of the Court and sought the reliefs listed in paragraph 15 above. 55. Such application having been filed, the Preliminary Objection has met the first component of (i) above. \Vit!.i regards to the second requiring the objection to re late lo a deficiency in the substantive suit, the objection is expected to identif), in clear terms the specific area of non-compliance of the 56. As earlier indicated, the substantive suit is an application for the rev iew of the said judgment. Articles 92 and 93 or the Rules details the conditions precedent to the review or a judgement including discovery of a fact of a nature that is of a decisive factor. The Respondent did not address any of these conditions, rather an extraneous matter of the recusal of a Judge is the s ubject matter and prayer of the Preliminary Objection. 57. As elaborated supra, a Preliminary Objection is intended to stop at the earliest stage the continuation of the substantive suit and where upheld, naturally brings the suit to an end. In this wise the Court has sought lo no avail such logical conclusion in the instant Preliminary Objection wherein it prayed the dismissal of the substan:ive suit. 58. Thc Court notes that no interrogative effect on the substantive suit has been established as the Preliminary Objection is not tied to any deficiency in the procedure for the Application for Review in terms of compliance wi th the provisions for review, neither was the competence of the Court nor admissibility of the Application cal led to question. The Respondent is therefore seeking the Court to examine the Preliminary Objection in abstracto. 59.\Vhile the Cou1i notes that the Preliminary Objection directed at the recusal of Hon Justice Edward Amaoko Asante from the panel that will adjudicate on the Review application may have procedural consequences on the substantive suit in terms of a poss ible re-composition of the panel, havi11g not identified any deficiency therein, thus no adverse effect necessitating the discontinuation of the said suit has been established. \Vhichever way the Court rules on this instant preliminary objection, it remains unaffected and the Cou1t is obliged to proceed with its determination on merit. 60. The Court therefore finds that the Preliminary Objection is incompetent same not tied to any deficiency in the Application for Review. b) The Preliminary Objection must be raised by an opposing party 61 . As earlier indicated, a Pre I iminary Objection connotes a protest raised against the continuation of a legal action. Such protest without gainsaying must naturally come from the opposing party to an initial application, while the Applicant equally naturally guards against its discontinuation. 62. [n the instant case, the party who filed the Application for Rcvievv of the said Judgment (though termed Respondent flowing from the initial Application) is also the one who filed the Preli minaty Objection which did not seek the d iscontinuation of the substantive suit as envisaged in the fundamentals of a Pre liminary Obj ection. This is c learly an absurd ity and incompatible w ith the oppositional nature of an objection in litigation. 63. The totality of this Preli111ina1y Objection both in its objective and c-haracter is strange to the Rules of the Court. Indeed the Respondent acknowledges this anomaly when it said, "Respondent says, that while it would be ohliged to accept the Jae/ that there may be no precedent in this coun where a Justice have been asked to recuse himlherse{f,' or have recused him/herself from sitting on a malter where there exists a conjlic1 of interest based on his/her personal opinion on the mat!er ... " 64. \Vhile the Cou1t is not oblivious of the right of a patty to seek a recusal of a Judge for proven reasons of bias, it is however perplexed at the strategy of the Respondent in this wise. The implication of this curious strategy in seeking an order for the recusal of a judge via a Prelim inary Objection under A1ticle 87 of the Rules is in the opinion of the Court a vain adventure. 65. As earlier ru led, the character of the instant Preliminary Objection is unknown to the law of this Court, and the initiating party is equally an anomaly. The Court being unable lo situate the instant Preliminary Objection with in the contemplation of Article 87 /88 of the Rules of Court under which it was raised, holds that the Preliminary Objection seeking an order of Court to recuse Hon Jus tice Amoako A,antc from adjudicating on the review Application is inadmissible and is hereby dismissed and a ll reliefs sought thereof denied. x. APPLICATION FOR REVIE\-V OF JUDGMENT NO ECW/CCJ/APP/JUD/28/20 KABINEH MUHA.l\.l.lVlAI) JA'NEH V REPUBLIC OF LIBERIA Analysis <>/the Court 66. The Respondent in its Application for Review of the said Judgment, submits that the entire Judgment of the Court should be overruled and set aside same being reflective of several gross en-or of judgment of law and facts by the Court. 67. The Applicant on the other hand, contends that the Respondent is seeking to relitigate the case. Furthermore, that the Application for Review is not in compliance with the provision of Article 25 of the Protocol on the Cou1t, which provides that an application for revision must show that certain facts of a decisive nature were inadvertently overlooked in the judgment sought lo be reviewed. 68. Article 25 of the Protocol (A/P l/7 /9 1) on the Court, which is relevant to this application for review of judgement provides as fo llows; ! "An application for revision for a decision may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact wa~, when the decision was given, unknown to the Court and also to the party claiming revision, provided always that such ignorance was not due to negligence. 2. The proceedings for revi.!:ion shall be opened by a decision of' the Court expressly recording the existence of the new fac/, recognising that it has such a character as to lay the case open to revLvion and declaring the applicalion admissible on this ground. " 69. Additionally, Articles 92 and 93 of the Rules of the Court provides for conditions under which such application can be made as follows; 92. "An application/or revi.'ion of a judgment shall he made within three months qf the dale on which the facts on which the applicalion is based came to the applicant's knowledge." 93(1). "Articles 32 and 33 ofthese Rules shall apply to an application for revision. 2. In addition such an application shall: a) Specify the judgment contested; b) Indicate the points on which the judgment is contested; c) Set out the/acts on which the application is based; d) Tndicate the nature of evidence to show that there arefactsjustifying revision of the judgment, and that the time limit laid down in Article 92 has been observed 3. The application must be made against all parties to the case in which the contested. Judgment was given. " 70.lt must be noted that the conditior:s for revision are cumu lative, as a defau lt in one would render the application inadmissible. 71. The Court will now examine the grounds upon which the application for review is based to determine its compliance with above provisions and will be guided by its summary of the conditions in Atticle 25 of the Protocol and Articles 92 and 93 of the Rules as stated below: "The firs/ condition to be met in order lo succeed with a review applica1ion is that !he application must have been filed wilhin five years of !he date on which thejudgmenl that is being sought to be reviewed was delivered ... The second condition thal has to be sati.~fied ... is that the party applying/or a review must file his application within three months of his discovering the fi:1ct(facts upon which his application is based ... The final condition is that the application for review must be premised on the discovery of some }cwt/facts !hat ishre of a decisive nature, whichjl1ct/facts was/were unknown to the Court or the party claiming revision provided that such ignorance was not due to negligence. " MUSA SAlDYKIIAN V. TIIE REPUBLtC OF THE <,AlvfBIA RULING NO ECW/CCJiAPP/RlJL/03/12 (2012) CCJ ELR PARAGRAPHS 14, 15 & 16, PAGES 64 & 65. 72. \Vith regards to the first timcline reouirement of filing the application within 5 years of the date of the judgment in question, the Courl finds compliance as the judgment was delivered on IO November 2020 while the Application was filed on l February 202 1. 73 . The second timeline requirement provides that the appJ ication be filed within three months of the discovery of the fact/facts unknown al the time lhe decision was made. Ahead of making a finding on compliance under this head, the Court needs to first examine the facts pleaded to suppott the review application to determine if they meet the conditions set out in Aiticle 25(2) of the Protocol as regards discovery of a new facts. Indeed the said Aiticle obliges the Court to open the proceedings of the Court by a decision expressly recording the existence of the new fact and this was recapitulated when it held that; "The conditions of an application for revision such as provided for in Article 25 qfthe Protocol A/PIPJ/7/9 / are related to the discovety by the Applicant qfa new fact, of a nature as to exert a decisive influence on the decision, the ignorance of this fact not being due to the negligence ofthe Applicant. MRS TOKUNBO LIJADU OYEMJ\DE V. COUNCIL OF Ml'l\LSTERS & 4 ORS ECWiCCJi.fl. JD/02/08/REV (SUPRA). 74. At this point, the Court wiU restate albeit in brief the various facts canvassed by the Respondent in suppo1t of their application for review. The Respondent pleaded its grounds for review in 52 paragraphs most of which are based on alleged error of reasoning of the Court. A few of such grounds pleaded in the Respondent's Application for judgment review arc referenced as fo llows; a) Paragraph 13- "Further, Respondent suhmits that the court committed a palpable error when it grossly ignored the fact that the jurisdiction of a court is conferred by law and no/ by consent ... " b) Paragraph 1 8- "Respondent submits that the court committed reversible error when it said in para. 56 " .. .the court adjudged that "in view of its jurisprudence, this court has the competence to examine the laws upon which the allegations are based 10 ascertain whether the laws and punitive measures are regular or in vio(a1ion of 1he applicants ' rights ... '' c) Paragraph 22- "The court committed a serious reversible error when it ignored the Jae/ that the Afi'ican Charter relied upon is an integral part of the domestic laws c)/ Liberia having been ratified and ceded to , and therefore is subordinate to the supreme organic Law. the 1986 Constitution ... " d) Paragraph 26- "The court commilted a palpable error by interpreting Article 43 of the Respondent's J 986 Constitution when it recounts: "The 1986 Liberian Constitution provides under Article 43 as fellows .. . " e) Paragraph 33- "Further, Respondent says the court committed an egregious palpable error when it relied on the case: Justice Joseph Wowo v Republic of Gambia (2019) ECWICCJIJUD/09/lc;; Ocean v Turkey - 4622/99- Grand Chamber judgment (2005) ECl IR 282 (J 2 A1ay 2005) (para 115), and /los Lordship Justice Paul Uuter De,y & 2 RSv >-27 fr· Republic of Ghana (2016), ECfVICCJIJUD/17/19, (para 116) are all criminal cases whosefac1s and circumstances are not analogous to an impeachmeni 1rial which is the exclusive preserve of the Respondent's bicameral legislature .... " t) Paragraph 37- "The Court commi1ted a serious reversible error and therefore rhe en lire judgment is flawed and should be overruled and set aside as ilit has never been rendered on ground\· that Article 7 of the African Charter specifically subsections (b) (c) and (d) which the court relied upon ... " g) Paragraph 43- "Respondent submits that the court erred when ii said in para. 145 that Respondenl alleged failure to controverl .. allegations of irregularities catalogued by the applicant .. and described same as "worrying" which is not true, renders the entire judgment questionable and prejudicial ... " 75. While the pleadings in an application is instructive lo the analysis of the allegations made, the reliefs sought determines the orders that the Court is called upon to make. In this wise, the orders soLtght by the Respondent hereunder reprodLtced; 1. A declaration that the Court committed a reversible error when it ruled awarding damages ofUS$200,000 to the Applicant wbich were not supported by any evidence or specifically pleaded, testified to, confirmed and reconfirmed on mere violation of the Appli ant's ..>-.. ~ . / "self:esteemed." (sic), for the fact that the said claim was never raised by the Applicant in his entire Application; 11. A declaration that court committed reversible error when it sought to interpret Articles 43 and 29 of the Respondent's Constitution of 1986; an authority it lacks Jnder the Protocol establish ing the Court, and several opinions rende:ecl by it; 111. A declaration that the Court committed serious reversible error when ii arrogated unto itself the authority of an appellate body lo reverse the decision rendered by the Legislature of a Member State after it had constitutionally conducted an impeachment proceedings against the Applicant and had bim subsequently removed fi:om office; 1v. ln MUSA LEO KEITA V MA '..! (2004-2009), the CoUJi declared that it had no jurisdiction to adjudicate on a judgment delivered by the Court of a Member State. Similarly, in SJKIRU ALADE V FEDERAL REPUBLIC OF NIGERJA (2012), the Court said that it does not present itself as an appellate court over decisions of national courts. As stated above, this Court lacks jurisdiction to sit on appeal over decisions of National Courts or tribunals. 76. An analysis of the various facts pleaded, and reliefs sought by the Respondent do not reflect the discovery of new facts. The reliefs claimed are not for orders to review the said judgment based on the discovery of a new fact. Rather they are reliefs for an order of review based on allegation of errors of op;o;oo, ;otc,·pret,t;o., of law '"' foots by the Coo rt 1;:w- I contested judgement. Contrary to the Protocol, they cannot therefore be deeme d of a nature a:; to exert a decisive influence on the decision. 77. The discovery of a new fact(s) as provided in Article 25(2) is the crux of an application for review of Judgment as it enables the opening up or the judgment in the interest of justice. It should however be noted that even where such discovery has been established, such fact must have the potential to render the decision a miscarriage of justice if not reviewed accordingly. The Court put this succinctly when it held that: "The existence of new facts presupposes that the person requesting the revision may not have been informed of these .f<.tcts, bw also that these facts should be of a nature as to exer1 a decisive influence on !he decision made by the Court." MRS TOKUNIJO l.f.lADU OYEMADE V. COUNCIL OF MINISTERS & 4 ORS ECWiCCJ/JUDi02/08/REV (UNREPORTED) PAGE 18. 78. The above fundamentals were clarified in the reasoning of the Court in a case whose grounds for review are on all fours with the instant; "A carefid reading of Article 25 of Protocol A/P J/7/9 J reveals clearly thatfi:1c1s contemplated by the said Article are.facts that were in existence at the time of the decision but were unknown to both the Court and the party claiming revision. ii also reveals tha1 the facts in question are/acts thal could have had a decisive influence on the judgment. Can ajudgmen1 <>lthe Court be said to be a.fact that could have had a decisive influence on that same judgment? The answer is obviously in the negative. Again, can oo, my a judgmenl of the Coun fr a fact th~ i: - bejiJre that same judgment was delivered? The answer is certainly not in the aj(irmative." DR. ROSF. MBATOM ON AKO v. THE \VEST AFRICAN MONETARY AGENCY & 5 ORS. ECWiCCJ/JUD/28/15. 79. The Court therefore finds that the facts in support of the Application for review of the said judgment same being known to the Respondent at the time of the decision is not in conformity with the provisions of Article 25 of the Protocol of the Court as it relates to the d iscovery of a new fact 80. On a related point of review and appeal mechanism, the Court notes that aJJ the facts pleaded to support the judgment review are plausible gro unds of appeal in a National Court where the decisions thereof are subject to an appeal. Such facts cannot support an application for review under the relevant provision of the Rules of this Cou1t. The Court has in a plethora of decisions clari lied the impo1t of a review mechanism as against an appeal process. ln this regard the Cowt has stated thus, "The review mechanism provides a very limited opportunity.fbr parties who make signiflccmt findings of fact which were unknown to them and to the Court at the lime the decision of the Court was made without any negligence on the part o/the party claiming revision. ft is not an avenue fl)r parties to challenge the conclusions <~f fi1ct or law made by the Court in arriving at its decision (emphasis added) .. ... .ft is elementary law that issues of misconstructions/misapplications of law are issues of law and have nothing to do with facts at all. Article 25 (lj rJ 31 JP" T explicitly states that reviews are founded on the discovefy of facts of a decisive nature and not on issues of/aw. Issues of/aw are grounds of appeal and not review. " OC EAN KING NIGERIA LTD V. REPUBLIC OF SENEGAL ECW/CCJ/JLJ Di07il I -REV (UNREPORTED) PAGES 7 AND 12. 8 1. Furthermore, the Court held that: "ft is trite learning that ila judgment is erroneous it is a good ground for appeal but not a review as contemplated by Article 25 of Protocol AIP. /17/91 and Article 92 of the Rules of this Court." MUSA SAIDYKHAN v. THE REP UBLIC OF THE Gi\!v1BIA RULING 1\0 ECW!CCJ/RUL/03!12 (2012) CC. JELR P/\RAGR.i\PH 18, PAGE65. 82. \Vhile the facts pleaded have been adjudged as appeal materials, the Court has not shied away from insisting that the ECO\V AS Coult as currently constituted has no appellate jurisdiction and will not exercise that p0\.ver in respect of its decisions, which are final. The Court is a first and last resort for litigants. Tn this regard the Court held as follows: "This Court has no appellate jurisdiction and thereby cannot subject its decisions to reversal; this is a trial court.from which there is no appeal." DR. ROSE MRATOMON AKO v. TIIE WEST AFRICAN l'vfONETARY AGENCY & 5 ORS ECWiCCJiJUD/28/15 (UNREPORTED) PAGE 12. 83. Furthennore, the Cou1t has also held that, "Article 19(2) of Protocol AIP 1/7191 makes il clear that judgments of this Court are final and binding. subject to the provisions ofa review. The decisions ({/ this Court are thus not subject to appeal. " MUSA SAIDYK!-IAN V. THE REPUBLIC or, THE G. A.lv!BIA (SUPRA). See also DR. ROSE MBATOMON AKO v. Tl-IE WEST AFRlCAN MONETARY AGENCY & 5 ORS (SUPRA). 84. From the facts above it is obvious that the disclosure of new fact requirement was not met thus the compliance with the time line of three months upon discovery of the new facts becomes futile. In any case as staled supra, the conditions for revision are cumulative, as a default in one would render the application inadmissible. This was captured by the Cou11 thus; "The revision of a court's decision is an exceptional procedure and subject to strict interpretatioYJ. The Court ensures first of"all that the conditions (l admissibility provided for revision are fulfilled before eve1ything else. The default of one (~l the conditions renders the application inadmissible independently oft he appreciation of the other conditions." MRS TOKUNBO LIJADU OYEMADE V. COUNCIL or MINISTERS & 4 ORS EC\V/CCJ!JUD/02/08/REV (UNREPORTED) PAGE 13. 85. The Court therefore has no hesitation in holding that the Application by the Respondent for the review of Judgment No EC\V/CCJ/JUD/20/20 Cllr. Kabineh Muhammad Ja'neh v Republic of Liberia, having not disclosed a fact of a nature as to be of a decisive factor in the decision, is not admissible and the claims sought therein are denied. M_ __,)_ If~ 86. Consequently, the declarations a nd orders made in the said judgment No EC\. V/CCJ/JUD/20/20 Cllr. Kabi:ieh Muhammad Ja'neh v Republic of Liberia delivered on IO November 2020 stand and shall be en forced forthwith without any fu1ther delay. XI. COSTS 87. The Cou1t notes that none of the Parties made any claim for costs of the proceedings before the Court. In tl1is regard, Article 66(11) of the Rules provides, "lf costs are not claimed, the parties shall hear their own costs." The Cou1t hereby orders each pa1ty to bear its own costs. XII. OPERATIVE CLAUSE 88. For the reasons stated above, the Court si tting in public a'fler hearing both Parties. As to jurisdiction: 1. Ueclarcs that it has j urisdiction. As to admissibility: 11. Dismisses the Preliminary Objection of the Respondent on the Recusal of Hon Justice Amoako Asante. ff~ 111. Dismisses the Application of the Respondent for review of Judgment No EC\1//CCJ/JUD/20/20 Cllr Kabineh Jvluhammad Ja' neh v Republic of Liberia delivered onl0 November 2020. As to Compliance 1v. Orders the Respondent to comply forthwith without any further delay, with the orders made in Judgment No EC\V/CCJ/JlJD/28/20 Kabineh Jv1uhammad Ja'nch v Republic of Liberia, delivered on 10 November 2020. As to costs v. Orders both Pai1ies to bear their own costs. Hon. Justice Gberi-Be OlJATTARA- Presiding -~- ..... ~th . .-....... . Hon. Justice Dupe ATOKI - Judge Rapporteur Mr. Tony ANENE- MAlDOH - Chief Registrar Done in Abuja, this 4th Day of June 2021 in English and translated into French and Po11uguese. 35