Daniel Agada Okoh and Others v Federal Republic of Nigeria (ECW/CCJ/APP/37/16; ECW/CCJ/JUD/04/21) [2020] ECOWASCJ 60 (9 March 2020)

COMMUNITY COURT Of .nJSTICE, ECOWAS COUR DE .nJSTICE DE LA COMMUNATE, ~EDE,l() TRIBUNAL DE JUSTICA DA COMMUNITJADE, CF. DEAO No. JO OAR ES SALAAM CRESCENT OFF AMTl\'IJ KANO CRESCENT \!/USE II, ABUJ A. NIGERIA. PM R 567 GARKI, AB UJA 'IBL: 234-9-78 22 80 I \Vcbsjtc: , Fw11,,: courlecuwas.org TUE COl\<11\-iUNITY COURT OF ,JUSTlCE OF THE ECONOl\1IC COIVIJ\1UNJTY OF \VEST AFRICAN STATES (ECO\VAS) In the !\fatter of l)ANIEL AGADA OKOH & 42 ORS. v. FEDERAL R~:PL"HLIC OF NIGERIA /lpplication No: ECW/CC. JiAPP/37/16 Judgment NO ECWICCJ'. JUD/04/2 1 JUDG:WENT ABUJA 9 111 fvf AR. Cll 202 [ l THE COJ\,fl\lTTJNITY COURT OF JUSTICE OF THE ECONOlVUC COlVll\lllJNITY OF \VEST AFRICAN STATES (ECO\VAS) SUIT 1VO: ECWICCJ/APP/37116 JUDGil'JE1VT NO. EC1¥/CCJI. IUD/04/2/ BET\VEEN: 1) 2) DANIEL AGADA OKOH JOSEPH AKOR AGBO 3) KINGSLEY OGEYl 4) 5) 6) 7) 8) 9) PASTOR JOHN ATTAR RAPHAEL INNOCENT OGEYI EKERETE GORDJ. E JAJVlES ABRAHAlVl KA FAR ONYElVTERE IFEANYI COLL I NS CATHERINE ON\VANUIVIAH 10) SOLOlVION AN,JORIN 11) JOSEPH ABAH 12) SABASTINE UG\\'U 13) 14) lVIRS. BlLIKlSU OYENIRAN JVIRS. GLORIA EZEl(HU.lYIE 15) lVIR. PETER UDOF A 16) 17) JV1RS. i\•1ERCY 0. Ei\'1. MANUEL i\'IR. HENRY AFJ~AIR NYAH 18) ELIZA. BETH ASuK\VO 19) CHARITY SUNDAY 20) PRINCE JNEJ\IJ 21) !VIR. SYLVESTER OKON 22) INNOCENT JDOIVlA 23) RICHARD KJNG 24) SOLOMON EZE 25) AGBOH i\1ECEY EBERE 26) FRIDAY OGOKE 27) VALENTINE OGBODO 28) OBINNA AGBO 29) ANTHONY A. EZE 30) ABlGAJL EPHRAll. Yl 31) AGBO El\1MANUEL 32) ENGR .. JOHN OKOEDE 33) 01\!IEKA CHRISTOPHER 34) lVlRS. COJVlFORT AGUNYELE 35) JOHN AZORO 36) SOLO!VION UG\VU 37) STEPHEN FRlDA Y EDEH 38) J\.ffiS. ELIZABETH UCHE 39) J\:lR. LA\VRENCE OKOUGBO 40) lVlR. ANDY JVI. EDEH 41) JUDE NNA!VlANl 42) REGINALD OGUCHJNALU EKE ..... APPLICANTS 43) ANA YO HELEN (S11i11g for tl1emsef Pes llnd 011 behalf of I 06 others who lost tlteir properties in J(ano State 1/uri11g the Post-election Piolence of2011) AND FEDERAL REPUBLIC OF N lGERJA .... RESPONDENT C01\1POSJTT01V OF THE COURT: Hon. Justice Edward Amoako ASANTE Hon. Justice Dupe ATOKI - Presiding - .tvlembcr Hon. Justice Januaria Tavares Silva .\ilore:ra COST A - l\tfember ASSISTED BY: l\1r. Athanase ATANNON - Deputy Chief Registrar REPRESENTATION OF PARTIES: Applicants' Solicitor: Kayode AMODU, Esq. J. B. l\!lajiyagbe & Co. 4.1 [uman Rights A venue Kano- Nigeria Respondent's Solicitors: l\ilaimuna Lami SHIRU (!v1rs.) Abdullahi AlllJllAKAR, Esq. Civil Litigation & Public Law Department, federal f\1inistry of Justice, Abuja. 1. JUDGJtJENT: 1. T bis is the judgment of the Court read virtually in open court pursuant to Article 8(1) of the Practice Dire ctions on E lectronic Case :Vtanagement and Virtual Comt Sessions, 2020. 11. DESCRJPTI01V OF PARTIES: 2. The Applicants are Nigerian c itizens and alleged victims of201 l presidential post- election crises in Nigeria. T hey are ECO\. VAS CommuniLy citize ns who reside in the northern part of Nigeria and their individual addresses are duly provided in the initiating applicatio:1. 3. The Respondent is the Federal Republic of Nigeria. a :Vlember Slate of ECO\li/AS and signatory to the African Charter on Human and People's Rights (hereinafter referred to as the "Charter") and other international human rights treaties. III. JNTRODUCTJ01Y: 4. This suit is in respect of the alleged failure on the patt of the Respondent to prevent the 20 11 presidential post-election violence and its failure to provide security to the Applicants during the said post-election vio le nce which allegedly occasioned the violation of the rights of the Applicants as enshrined in Articles 2, 6, 13(1), 14 and 23(1) of the Charter. 5. Additionally, the Applicants again are complaining about the Respondent's selective compensation of some peJsons who lost their properties in the posL election violence of 2011 while allegedly refusing to compensate the Applicants who claim to have also lost their properties and means of livelihood in the same post-election violence of2011. According to them, this amounts to discrimination against them, and inequality in trcalrnenl and application of the law. III. PROCEEDURE BEFORE THE COURT: 6. The Applicant::;' Initiating Application wa::; filed a( Lbe registry of the Court on the 13 th October 2016 and served on the Respondent on the 19th October 2016. They tiled a lvfotion for Default Judgment on the 24'h l'v'larch 20 J 7 when the Respondent failed to file its defence on time. The motion was served on 28th l'vlarch 2017 but before it could be argued, the Respondent on the 18th May 20 18, filed Notice or Prel iminary Objection which was served on the same date. The Applicants filed their response to the Notice of Preliminary Objection on the 2nd August 2018 a:id same served on the Respondent on the I O'h August 20 I 8. 7. Jn the tirst Court session held on the 4u, February 2 020, both pmties vvere represented by counsel in open Court. However, the business for that day, hearing oflhe Preliminary Objection was adj0Lm1ed beca use or the absence of the substantive counsel for the Respondent whose brief was held by a colleague from his departme nt who sought a n adjournme nt. ~ 8. On the 25th February 2020, the Applicants fi led a motion for leave to amend their lnitiating Application together with the proposed Amended lni tiating App lication which were served on the Respondent on the 27th February 2020. 9. ln the second session of the Court's hearing on the 2nd Nlarch 2020, counsel for both parties were present in ope:, Court and the Respondent's preliminary objection was argued. The Cou1t dismissed the preliminary objection and directed the Respondent to respond to the Appl icants' amended pleading before the next adjourned dale for consideration, which was the J 9'h !\.fay 2020. IO. The Respondent, on the 19th Ju ne 2020 filed motion for extension of time to file its defence together with the Statement of Defonce itself which vvere served on the Applicants on the 2 1" June 2020. 11 . In the third session of the Cou1t's virtual hearing on the 13 th July 2020, both counsel were present where the moti on for default judgment was withdrawn and the Applicants' Amended Initiating Application was accepted. The Applicants applied for an adjournment to enable them file a Reply to the Respondent's Statement o f'Defonce. This was granted and the processes were filed on the 2nd October 2020 and were served on the R espondent on the same day. 12. The Court had its fourth hearing of'.his case v irtually on the 7'11 October 2020 where both parties were represented by counsel in Cou1t. The Respondent' s Statement of Defence and the Appl icants' Reply were all granted as prayed for by counsel. . Final hearing of the case on Lbe merits of their respective cases was adjourned to the 10111 ofNovem'. Jcr 2020 due to the poor network. Hearing of the case vvas subsequently conducted where both counsel re lied on their already fi Jes processes and the court adjourned the matter for judgment. V. APPLJCA1YTS' CASE: "· Sununmy of Facts 13.lt is the case of the Applicants that on the 16'" April, 2011 presidential election was held throughout the Responder.! State to elect a president, and following the announcement of the election result on 18th April, 2011, widespread riots erupted mostly in the northern patts of the country including various parts or Kano State where the Applicants were residents. The Applicants further claim that the failure of the Respondetll lo prevent the occurrence and provide securi ty to the Applicants during the said violence occasioned the violation of their rights as enshrined in Articles 2, 6, 13( I), 14 and 23( l ) of the Charter. 14. The Applicants claim that the post-election vio lent clashes and riots occasioned loss of lives of their !oved ones, wanton destruction of their properties and means of Ji velihood. 15. The Applicants state that the Respondent; acknowledging its fai lure to protect lives and properties, and in a bid to compensate the victims of the resultant violations, constituted and commissioned a panel of enquiry headed by one Sheikh Ahmed Lemu, to amongst other things, identify Lhe spread and extent of losses suffered across the cotmtry and make re levant recommendations. 7 16. According to the Appl icants on 9111 : uly 2011, the Ahmed Lemu Panel visited Kano State where it held public investigations at the Sani Abacha Stadium in Kano State. The Applicants were duly invited in the company of other victims of the crises and their memoranda containing al l the re levant evidence comprising police report, affidavits which they had deposed to and photographs of lhe destroyed properties were submitted to the Ahmed Lemu Panel al the Sani Abacha Stadium, Kano wh ich said documents are still in the custody of the Respondent. The Applicants aver that some or lhem sti ll have copies of their documents whid, were submitted to the panel whi le others have lost theirs and therefore put the Respondent on notice to produce the documents in their possession. l 7. It is the case of the Applicants that upon conclusion o r invest.igations, the Ahmed Le mu Panel submitted its report to the then President and Commandc,r-in-Chie f: President Goodluck Jonathan after which the report was adopted by the federal Executive Council paving way for the approval and subsequent release of the to tal sum of Five Billion Seven Hundred l\1illion Naira (N5,700,000,000.00) to compensate those who suffered losses of property and whose metrns of'livelihood and places of worship were destroyed as a result of the violence in the nine states in the country including Kano State, where the Applicants reside. 18.0ut of the approved amount released by the Respondent for Lhe victirns, a colossal sum of Nine Hundred and Forty-Four tvlillion, Eight Hundred and Twenty-Seven Thousand Na irn (J\944, 827,000.00) was a llocated for the compensation of verified victims from Kano State. 19. The Applicants state that, in the company or other victims they converged at the Kano State Deputy Governor's Office, where they were told to converge for the payments sometime in September 20 13 only for them to discover that their names were conspicuously o:nitted from the I ist of persons to receive compensation, while some other persons mainly landlords, whose house and places of worship were destroyed were included in the list. 20. The Applicants are contending that all their efforts made to ensure that they we re compensated for the violations they suffered like the other victims, we re ignored despite several promises made by the Respondent that they will be compensated. Applicants contend that there were subsequently several correspondences exchanged between them and the Respondent, but to no avail. They tbrther claim that the last correspondence was a leller dated the Is, July, 20 14, in which they caused their Sol icitor to write a reminder to the President or the Federation throug1 the office of the Cbief of Staff' of the President of the Respondent. 21 . The Applicants aver lhut despite a II of their letters and pleas, the Respondent has refosed to pay them ti ll date of filin g the insta nt s uil. The Applicants add that shortly befrire the conduct of another presidential election in March 20 15 whic h produced the curren t president or the Respondent - President Jvluharnmadu Buhari, the Responden t again approved and released monies for compensation or Kaduna S tate victims of lhc same post-election violence of 20 1 I, while again refusing to pay tte Applicants their due compensation fix the losses suffered like the other victims. 22. According to the Applicants, there is no justification fbr the Respondent's act of paying some people and refus ing to pay them when they al l suffered losses during the same post-election riots of20 11 over nine years since they s uffered these losses and have been deprived of their properties and means or Ii vel ihood. 23 . H is the case of the Applicants that the Respo nden t was unj ust in its action o f fa iling to provide security to the ,AJ;plicants during the post-election violence of 2011 and also fai ling to fulfill its obligations under Article l of the African Charter, and by compensating some who lost their properties in the post e lection v iolence of 2011 while refusing to compensate the Applicants who a lso lost thei r properties and means of li velihood in the same violence. h. Applicants' Sumnutry Pleas in law 24. The Applicants relied 0 11 Articles I, 2, 6, 13( 1], 14, and 23 ll] of the Charter to establish their case. 'fhey conclude by su bmitting that the provis ions of Artic le I binds the Respondent to recognize and take measures to give effect to the rights of the Applic,u1ls as contained in A11icles 2, 6, 13( I), 14 and 23( 1) of the Charter. c. Reliej~/Orders sought by the Applicants 25. The Applicants, in their amended application filed at the registry oflhe Court dated 24111 Februm·y 2020, on the account of the aforeme ntioned fac ts, are seeking the follow ing reliefs and dec larations from the Court. L a) A DECLARATTON that the Respondeni 's .failure to prevent the post-election violence c?f 201 I and its .failure to provide security to the Applicants during the violence amounts to a violation of its obligations under Article I of the Afi·ican Charter on Human and Peoples' Ri1:hts (Ratification and Enforcement) Act CAP A9 laws of1he Federation <~/Nigeria 2004. b) A DEC!ARATJON that the.failure of the Respondent to fit/fill its obligations under Article I of the A.fi·ican Charter on Human and Peoples ' Rights (Ratification and Enforcementj Act CAP A 9 Laws of the Federation of Nigeria 2004, occasioned the violations of the rights of the App/icams as guaranteed by Articles 2, 4, 6, I 3(/), 14 and 23( I) of the same Charter. c) A DECLARATION that the Respondent is to be held responsible fin· the violations of the rights qf the Applicants as guaranteed hy Articles 2, 4, 6, 13(1), 14 and 23(/) of the A/dean Charter on Human and Peoples ' Ri1:hts (Ratification and EnfiJrcement) Act CA P A9 Laws qfthe Federation ofNigeria 2004. dj A DECLARATION that the Respondent 's act ofwlective compensation ofonly some persons who lost their properties in the post-election violence of 201 I while refi.sing to compensate the Applicants who also lost 1heir properties and means of livelihood in the same pos1 elections violence is unjust. e) Cost o.f Sixteen Billion, Five Hundred A1illion Naira (NI 6, 500,000. 0U0. 00) as compensation to 1he Applicants. IV. RESPONDENT'S CASE: rt. Summ(lry of F"cts 26. Contrary to the facts presented by the App licants, th e Respondent contended that it never relented in ils da ily routine work of protecting the rig hls o I' the citizens at all time . The Respondent in every election conducted by its government usually deployed its secu1ity personnel to make sure peacef'ul elections were conducted. 27. The Respondent contends that fo llowing the 201 1 presidential post-election riots in some states of the Federation, the federa l govern men t promptly set up a panel of enq uiry headed by Sheik Ahmed Lemu, a jurist and distinguished Islamic Scholar to investigate the immediate and remote causes or the riots in those states. 28. In implementing the approved report of the panel of enquiry, a white paper was issued by the Federal Government by releasing the s um of NGN 5.7 Billion for the compensati on of the victims of the ri ots across the country. 29. The Respondent submitted that the Applicants are not entitled to the reliefa sought and that the instant suit is an abuse of court process havi ng been decided at the Federal High Cou rt of >ligeria holding at Kano, with Suit No. FHCIKN/CS/152/2014, on the su bject mattt:r and the matter having been struck o ut. A copy of the orig inating process in that suit tendered in evidence as Exhibit "A". JO. The Respondent fi.irther contends that the claim of the Applicants that they lost thei r properties is u nsustainable because they [ailed to s how receip ts and other evidence as proof of ownersl:ip of lhose properties. The absence of any police report showing the nature and number of properties lost in the riots a lso worsens their case. b. Respondent's Pleas itt Law 3 1. The Respondent relied on the decision of the Federal High Court of Nige ria holding at Kano, in Suii No. FHCIK. N!CS/15212014, on the subject matter and a rgued that this is an abuse of the court process and must be struck out as such. c. Re/ief. VOrders sought 32. The Respondent urges the Court to consider its argument in opposition lo the Applicants' Application and consequently dismiss this su it for lacking in me ri t. V. A PPLICANTS' REPLY: 33. The A pplicants staled in their reply that they are 149 of them and lhey on ly e lected the 43 Applicants to sue on beha lf of all of the m and that all of them itemized all the loses they suffered and sent same together with duly sworn affidav its/police reports/valuation reports to the Lemu Panel of the Respondent which is in custody of the Panel to date. T he Respondent is in possession o f all the originals of the docu ments evide ncing the losses incurred by the 149 Applicants. 1 34. The Applicants state that while it is true that they had initially commenced a suit before the Federal High Court in Kano, they had on 14 June, 2016 appl ied lo withdraw the matter and it was Etruck out by the court Lo enable them fi le the instant a pplication before th is court. The matter was never decided in the Federal High Court but struck ot.:l as admitted by the Respondent in its Statement of Defence. T he ApplicanLs have applied to the Federal High Court Kano for the records of proceed ings showing that the matter was struck out but the coun has not been able to locate the tile despite repeated searc hes. A copy of the application letter was pleaded and annexed as Exhibit 15. VI. . IURISDICTION: 35. Atticle 9 (4) of the Protocol on Lhc Community Court of Justice, ECO\VAS, as amended grants the Court mandate lo adjudicate on matters o f human rights violations. lt provides '·The Courl has jurisdiction to determine cases of violation ofhuman rights tha1 occur in any member state. "Tn the instant case, the allegation of the Applicants are based on the subject matter of violation of their human rights contrary to the re levant provis ions of the Charter relied upon, therefore the s uit falls within the human rights jurisdiction o f the Court. VII. AD11'1ISSIBILTTY:- 36. The forty three ( 43) Applicants described themselves as v ictims o r the post e lectio n vio le nce of201 l in Kano State w ho a llegedly lost various properties and the ir sources of li veli hood in the violence and have all come together under the name KANO TENANTS AVDSHOP OWNERS FORU1\110 fight for - compensation from the Respondent for themselves and on behalf of I 06 others ,vho also allegedly lost their properties in Kano State during the said election violence of 2011. 37.ln terms of the provisions of Article 10 (d) of the Prot0col on the Cowt as ame nded, even where the jurisdiction of the Court is established, an application whose subject ma tter concerns human rights violation, shall only be admissible when three criteria a:·e met: the Applicant's s tatus as "victim" must be established, the non-anonymity of the application, and the absence of' !itis pendence before another international Court or Tribunal. This provision was forther confirmed in the case or AZ!AGBEDE KOKOU & 33 ORS. ATSOU KOivlLAVl & 4 ORS; TO:'vfEPKE A. LANOU & 29 ORS v. REPUBLIC OF TOGO (2013) CCJELR 167 (ii) pg. I 74. 38. ln respect of representative capacity, this Court has held that ,;the proof of' authorization in the case of'natural persons acting on behalf()[ a group cannol be dispensed with. The Court went on further to state thm,.fiJr the PlainrijJr to access !he cow·/ for and on beha[l of the people of Delta, they need !he mandate upon which they act and when questioned must establish consenl o( the people or a justification jbr acting without such consent. " The Court fu1thcr stressed that: "The criteria .for represenration must be respected. A party authorized to act on behalf of another person or group of people sha/1 exercise the power of representation in such aclion by virtue of the ves1ecl power". See the case ofNOSA £HAN/RE & 3 ORSv. FliDERAT, REPUBLIC OF NIGERIA (2017) ECfVICCJ/JUD/03/17 Unreported. 39. In respect of the 43 Applicants w hose names and addresses are endorsed on the Originating Application, there is no dou bt about their capacity and propriety in instituling the instant suit but their purpo1ted representation of the l 06 others a lluded to suffers a fatal admissibili ty requirement, particularly, on grounds of anonymity. 40. Failure by the supposed I 06 other Applicants to personally endorse their names on the Application would not have made it an anonymous application if it had contained information that could identi fy the said Applicants. However, a close scrutiny of the inslant application fails to disclose any credible information as to the identity of these purported a pp licants, and Further to this, there was no evidence of a formal mtU1date def ivered by them to the 43 Applicants, lo act on their behalf. 41.ln the light of the foregoing, lhe Cou1t is unable to admit the case on beha lf of the purported I 06 other Applicants who are not specifically identi lied or identifiable on the face of the records before it. Their case is declared anonymous. The case 43 identified Applicants is therefore declared admiss ible, and that of the 106 other applicants is struck out as inadmissible. Vil!. PROCEEDliVGS BEFORE THE COURT: 42. The Respondent on lhe 18'11 wfay 2018, filed Notice of Pre] i mi nary Objection which was served on the same date. The Applicants filed their response to the Notice of Preliminary Objection on the 2nd August 20 l 8 and same served on the Respondent on the 10'11 August 20 18. tfij W7 43. The two prong o bjection of the Responden t relates to firstly ; that Lhc matter concerns an alleged non-pa yment of compensation by the Respondent and thus not within the jurisdiction of this Honourable Court, and secondly; that the suit is statute barred because it was commenced three years after the cause o r action arose as required by tbe Supplementa ry Protocol [J\iSP. li0 I /05] amending the Protocol [A/P l /7 /91 ] on the Court. The Respondent therefore sought for an order of the Honourable Coult dismissing the suit for want of jurisdiction and for being statute barred. 44.0n the 2nd March 2020, counsel for both parties were present in open Court and the Respondent's preliminary objection was argued. The Court dismissed the preliminary objection on the grounds that; the action was in respect of the alleged human rights violation which was wi thin its competence, and also that, the limitation period had not elapsed and therefore the statute or limitation invoked by the Respondent was misplaced and not appl icable to this instant case and the Court so held. IX. J'dERTTS: a. The issue ofResjudicala: 45. The Respondent pul up a defence or res j udicata and submitted that the instant case be dis missed on the grounds that the •·suit is an ahuse or court process, the same case having been heard and decided at the Federlll High Court of Nigeria holding at Kano with suit number FHC!KNICSI J 52/2014 on the same subject and was struck out, the said judgment is attached as exhibit 'A' by the Respondent". 46. Jt was s ubmi tted by the Respondent that this instant case has the same subject matter and same fact as the one that had been a lready decided at the national court and therefore cannot become a matter for litigation before another court because in doing so will amo unt to dealing with the same issue twice contrary to the legal principle of res-judicata; for this reason the Respondent made a case for the matter to be dismissed in its entirety. 47. The Applicants on the other hand contended that the said matter was struck out by the court at their behest 'Nithoul go ing through a normal trial to enable them file this application be fore this court. They argue that since the matter was never decided on merits, the issue of res Judi ca ta does not arise. 48. This Court having considered the s ubmission or both parties under this heading, reiterates that for the plea er res:judicata to find purchase before any court of law, the patty invoking the plea m ust be able to advance a very persuasive and convincing arg ument that the matter essentia lly consists of the same parties, the same fac ts, the same issue arising from that pa1tic ular allegation and the same subject matter or issues arising from the same case as decided previously by another court of law. 49. The above mentioned elements oflhc plea ofresjudicala have been settled in the jurisprudence of th is Court when the Court he ld that ''The doctrine o/res judicata simply states that once a mailer/cause has been finally derermined. it is not open to either party to re-::;pen or re-litigate the same matter. The ~ doctrine of res judicata serves to ensure thai there is finality to litigation. " See the case of FEJ\t!J FA LANA v. ECO WAS C01\IIA1!SS!ON (20!4j Judgmen1 No. ECWICCJIJUD/10114 (Unrepc;rtedj SO. The doctrine of res judicata raises estoppel against the pa11y seeking to re litigate what '1as already been decided by a court of competent jurisdiction. This Court observes from the submissions of both parties that lhcy both have a common ground that the case was struck out by the Kano Hig h Court but not decisivelv tried on merit and laid to rest bv a final decision as envisaiied , , - in the application of the doctrine o[resjudicata. 51.lt is pertinent to note that to strike out a case from the cause I ist of a court could be for various reasons. Without attem pting to give an exhaustive list, a mong the varying grounds for striking out a case from a court's cause list are, want of di ligent prosecution, for peaceful resolution/settlement by parties or by an application from the party seeking to withdraw the case for any cogent reason before it is decided on merit. 52. Based on the submission of both parties, and considering the tenor of exhibit 'A' as tendered by the Respondent, it is clear thal the- matter was not heard before the Kano High Court, it was struck out at the behest of the Applicants to enable them ins titute the present suit without going into the meril. This Court concludes that the defence of resjudicata is not appl icable in the instant case as striking out a case is not the same thing as deciding a case conclus ivd y between the parties on merit and the Court so ho lds. b. Respondent State's Obligatio11 to Protect anti prevent: 53. The Applicants are praying this Court for a declaration that the failure of the Respondent LO provide adequate and qualitative security in the affected Communities afl:erthe 201 l presidential election which led t.o the loss of' li ves and the destruction of their properties and means of livelihood amount to breaches of the latter's obligations lo protect and prevent violation of the rights of the victims. 54. The Respondent in its Statement of Defence argues that, contrary to the facts presented by the Applicants in tl1cir application, the Respondent never relented in its dai ly routine work of protecting the rights of its citizens at all timc. The Respondent contends that there was deployment of securily personnel to make sure peaceful elections were conducted . 55.lt is apparent on the face or the rcc::>rds avai lable to the Court that there was an outbreak of violence across the Respondent State after the declaration of the results of the 2011 presidential results. i t is also factually established that the perpetrators of the riots were non-state actors. Neither did they carry out their nefarious activities with the support and tacit approval of the Respondent. 56. The Comt notes that the Respondent being a signatory to the Charter is bound to recognise the rights enshrined therein and give effect to them in ful fi lment or iLs obligation to protect its citizens frorn harm. The Court agrees wiLh the reasoning of the INTERNATIONAL LAW COJ'vl,\1JSSJON rVHEN AT ITS 53110 SESSION when it said that: l ,;Every internmiona/ly 1vro11gfitl act by a state gives rise to imernwional responsibility. And international wrong/id acts exisl: where conduct consisting of an action or omLysion is imputed to a state under international law, and such conduct in itself' as a direct or indirect cause of an external e vent constitutes a failure to cany out an internmiona! obligation <?/ the stale. " 57. Conduct attributable to the state. can consist of actions or omissions. Cases in which the international responsibi lity of a State have been invoked on the basis of the omission o f that State abound in the international law jurisprudence. For example, lhe CORFU CHANNEL CASE. 1\1ERJT, /CJ REPORT 1949 p.4 at pp. 22-23 case, the ICJ held ''that it was a suj)icient basis jbr Albanian responsibility tha! if knew, or must have !mown, of the presence of mines in its territoricd wafers and did nothing to warn third parties <df-heir presence". Again, in DJPLO1\,fATIC AND CONSULAR STAFF CASE, 1. C. J REPORT 1980, p . 3 at pp. 31-33 paras 63, 67, the Court concluded that the responsibility oflran was entailed by the "inaction" o[ its authorit ies which ''.failed to t{lke appropriate steps" in circumstances where sud1 steps were evidently called for. 58. The obligation to protect is more of a positive nature and require Slate to guarantee that private individuals do not violate these rights. States will be held responsib le for any vio lations of rights under the Charter regardless if such acts of violations were carried out by slate agents or not. It is in that wise that The African Commission found in Communication 266/03, KEVIN i\1GJ11ANGA GUNA1E ET AL V CAi\lfEROON (2009), PARA 122; COivfi\lfl. FNICATJON 272103, ASSOCIATION OF V!CTT1\IIS OF POST ELECTORAL VIOLENCE & INTER!GHTS V. CAA4EROON (2009). as follows: ''The negligence of a State to guarantee the protection of the rights of the Charter having given rise to a violation ql the said rights constitutes a violation of the rights of'the Charter ·which would be artributable to this State, even where it is established !hat the State itse(f'or its of/1.cials are nor directz)l responsible for such violations but have been perpetrated by private individuals. " 59.ln the instant case, the Respondent. though not directly responsible for the violence that occurred a Iler the declaration of the results of the 20 I I presidential election, its responsihilily is entailed by the i11actio11 of iL~ security operatives which woefully fai led to take appropriate measures to against a known and foreseeable threat to life and prope1ty from the acts of the perpetrators of the riots atler the e lection. 60. The combined effect of Article I of the Charter to which the R.espondent is a signatory and Section 33 of the 1999 Federal Constitution of Nigeria is tha t, the Re-spondent is under the obl igati:m lo recognize the rights enshrined in the Charte r and adopt legislative or other measures to g ive effect lo them. In other words, the Respondent is obliged to protect the human rights of it:; citizens and prevent their v iolation. 61. However, for this Court to find that the Respondent is i.n violation of its duty to protect and prevent, the i\pplicants must establish that they were impacted by Respondent's failure of obligation by establishing that they arc actually victims of the violence, for instance in the case of alleged violation of right to property; the nature of the property, proof of ownership authen ticating their right over it and proof of its destruction whic h is linked to the e lection violence. 62. Again, even where the Appl icants have been able to establish their victim status to warrant a finding to the effect that the Respondent is in violation of its duty to protect and prevent, such a fi nding may be inappropriate 1vhere the Respondent, acknowledging its fa ilure to prevent and protect, has insti tuted appropriate measurc-s which sufficiently sought to remedy any violation occasioned by its inaction resulting into the breach. 63. ln the European Court of Human Rights case ofTAGAYEVA AND OTIIERS v. RUSSIA Nos. 26562/07 AND 6 OT!IERS, 13 April 2017, the Court considered the obligations of the State, as regards a large-scale hostage-taki ng by terrorists which took place in a school. There were hundreds of dead and injured and the Applicants were next-ot~kin and survivors. ln its judgment on merits, the Court found that there had been a violation of Article 2: ·'afiiilure to protect against a known and foreseeable threat to l!fe ofthe deceased.from terrorist act and breach o,/State 's obligation to investigate". 64. The African Commission , in a Cameroonian case of; Tl-TE ASSOCJA1'101\/ OF VJCTJA;fS OP POST ELECTORAL VJOT,F,NCE & JNTt;RfGHTS v. CAA1EROUN; C01\41'1UNJCATJON 272103, PARAGRAPHS /24- 126; held against Cameroun thal: "Failure to take adequate measures 10 prevent the violence which led to the physical harm and material damage si1flered by ihe victims violated Artie/ti 2 o/the Charter ofACHPR . .. The Court added that: "The Stale <>/' Cameroun failed to fit!ji/1 its oblif(ation to protect, which [is] incumbent upon the State. " 65.ln both cases of the E uropean Cowt of Human Rights and the African Commission (supra), the States concerned were held to have breac.hed their duly to protect because the J\ppli ~ants in those cases were found to have suffered damages in one form or the other as a result of the States' fai lure to protect their rights. This means that for a State to be adj udged liab le in viola6on of'its duty to protect, the Applicant must add uce competent evidence to establish his victim status v is-a-vis the events complained of. 66.lt is in the light of the analysis [supra] that this Court considers it expedient lo proceed to detennine the alleged violations of the rights of the Applicants in order to conclude whether the Respondent is in violation of ils obligations under Articles I and 2 of the Charter. c. Alleged violation of the rights<~( t/1e Applicants: 67. The Applit:ants are seeking a declaration that the failure of the Respondent to fulfill its obi igations under Article I of the Charter occasiont:d the violations of their rights as guaranteed by Artic les 2, 4, 6, 13(1 ), 14 and 23(1) of the same Cba1ter and so the Respondent should be held responsible fi)I' the said violations. 68. \Vhile it is lru c that the Respondent, to some extent accepted the responsibility of its fa ilure to protect, the fact rem ains that not every citizen of the a fleeted States was a victim of the said violation even though impl icitly, the obligation is owed to the generality of its citizenry. 69.lt is equally apposite that the procedural obligation to investigate and its attc.ndanL requ irement of resorting to other effcctiv<:: domestic remedies against any known perpetrators of c.rimc. as well as red ressing victims a rc considered as indispensable segments of obligation to protect and prevent of any state in matters like the instant one. 70. On the issue of investigations, this Court, in the case of SERAP & JO ORS v. THE FEDERAL REPUBLIC OF NIGERIA & 4 ORS (2014) ECW/CCJ/JUD/16/14, (Um·eported), held that: ''the obligation of the state io prevent imposes the duty to cany out an effective investigation into acts amounting to human rights violations. intending to prosecute the perpetrators and redress the victims ' '. 71.lt is in the light of the statement in the inunediate preceding paragraphs, that the Court considers that any declaration of liabil ity for the violation of the rights of the Applicants must bi:: treated vis-a-vis the conducL of the Respondent subsequent to the 20 I l presidential post-election violence. In other words whether or not the Respondent is in breach of the rights of the Applicants as claimed must be viewed holistically from the behavior of tht: Respondent towards the Applicants hoth before and after the events in question. 72. \Vhere a State is aware of the occurrence of acts amounting to violation of hu man rights in its territory and fails to cany out effecti ve investigation into 1 the violation so as to identif} those responsible, hold them accountable. and more so ro redress Lhe injured or victi ms of the violation, such State will be in violation of its obligation u nder international law. 73 .ln VELASQUEZ RODRIGUEZ V HONDURAS, JUDGlvJENT JULY 29, 1988, JNTER-A,\d. CT. H. R (SER. C) NO. 4 (!988j case, the Inter Ame ri can Court stressed that: "Once state aurhorities are aware of an incident. they should without delay instituie an impartial and effective means to unravel the truth. ., 74. T he Respondent contends that following the 201 1 presidential post-election riots in some states or Lhe fedcralion. the federal government promptly set up a panel of enquiry headed by Sheik Ahmed Lemu, a jurist and distinguished Jslamic Scholar to investigate the immediate and remote causes of the riots in those states. 75. The assertion that prompt action was ta ken by the Respondent when the riots took place was corroborated by the Applicants when they averred that "the Respondent acknowledged and took steps to remedy the various human rights violations that occurred during the riots by setting up a panel to access !he exte/11 of damage and work out modalities fbr compensation c>f victims of the violations of human rights". 76. The Respon dent's case implicitly underscores the fact that there was an aberration of its responsibiliLy to protect and prevent the violence that erupted after tl1e presiden tial e lecLion in 201 1. The Respondent, hovvever, acknowledged its tardiness that led to Lhe riots and without de lay, instituted an impartial and effective means of not on ly to L11u·avel the truth, but also to afford opportunity to any victims for redress or any harm caused. 77. The obligation to protect the right lo life and property of the people under the C harter, read in conjunction w ith the State's general duty under Article l of the same Charter to "recognize the rights, duties and freedoms enshrined in the Charter" to everyone within [itsl jurisdiction, requires by implication that there should be an effective offic.ial investigation when a person dies or loses his property in the way and mam1er as a lleged by the Appl icants. 78. \:Vith regard to the requirement for compensation to remedy a breach occasioned by violation of right to life or property at nationa I level, the Court has repeatedly found tlrnt. in addition to a thorough and effec! ivc investigation, it is necessary for the State to make award of compensation to victims, where appropriate, or at least to give them the possibility of seeking and obtaining compensation for any damages sustained as a result of the violation. 79. The Cou1t observes that the Respondent dutifully complied with its obligation towards the Applicants by given them the possibility of receiving compensation if indee.d they were victims of the post-e lection riots in their communities. As staled earlier in ths judgment, not every citizen with in the communi ties that were affected by the ri ots was a victim to meri t compensation. Again the Court is not oblivious of the fact that when the Respondent offered the opportunity for victims to make their cases {or compensation via Lemu Panel, the tloocl gate was opened to both gen ui ne an<l unsubstantiated allegations from r ersons with both genui ne and ficL itious claims. 80. So it was the Lemu Panel that was tasked to receive, veri fy, and estab lish those who were the real victims or Lbe violence and make recommendation for their compensation. From the submiss ions of both patties, the Panel did rece ive and conducted investigations from a. I claimants who were offered every oppo1tunity to establish their claims. [tis pertinent to note that the Applicants arc not impugning the integrity o r the propriety of the work done by Lhe I .emu Panel. 8 1. Jn the case of the Applicants, they stated that "on 9'1 ' July 201 I, the Ahmed Lemu Panel visited Kano State ·where it held a public investigations at the Sani Abacha Stadium in Kano Stale. The Applicants were duly invited in the company of other victims of the crises and their memoranda containing all the relevant evidence comprising police report, affidavits which they had deposed 10 and photographs of the destroyed properties were submitted to 1he Ahmed Lemu Panel al the Sani Abacha Stadium ". 82. Aftcr the Lcnrn Panel had submitted its report and recomme ndations, a white paper was issued approving a stated amount for compensation of the verified v ictims. According to the Applicants, "out of the approved amount released by the Respondent for the victims, a colossal sum of Nine Hundred and Forty Four 1Vfillion, Eight Hundred and Twenty-Seven Thousand Naira (N944, 827, 000.00) was allocated for the cc:mpensation of'verified victims kom Kano State ". 83. The Applicants, who inextri cably hinged their instant case on the ,.vork of the Lcmu Panel, throughout t heir case were not able LO estab lish thaL they were part of the people who were " ver(fled as victims " to merit payment of compensation. It should be noted that not everyone who submitted claims to the Lemu Panel was verified and approved f<.)r payment or compensation. 84. The law is firmly and well established t hat in claims fo r declaratory re lie fs. the Applicant must plead sufficient facts to constitute a platform for the reliets being sought and he must lead or proffer cogent and credible evidence to sustain or support the said re liefs. The reason ror this is obvious. Applicant seeking for a declaratory re lief must rely a nd succeed on the strength of his own case and not on any perceived weakness in the Respondent's case. See rhe case of TIIE REGISTERED TRUSTEES OF THE SOCTO-F:CONOi'v!TC JUGHTS & ACCOUNTAIJil/TY P. T?OJECT V THE FEDERAL REPUB!JC OF' NIGEJUA AND I OTUER . JUDGA1ENT N°: ECrV!CCJ!JUD!/91/6 page 28. 85. \Vhen examining the quest of the citizenry to secure compensation from the ir governments in any given circumstances, the inquisitorial body must bear in mind that all manner of fictitious c laims may be s ubmitted. Th is Court has no reservations to come to a conclusion that, Lemu Panel mig ht have scrutinized any such c la ims with spccifie-ity to :he injuries alleged to have been suffered by any claimant and the nexus between them and the event that occasioned the violation in such a way as not lo include fictitious claimants and also not to impose an excessive burden on the authorities. See the case of TllE REGISTERED TRUSTEES OF JA;\,fA 'A FOUNDATION v. THE I·EDERAL REPUBLIC OF NIGERJA & ANOR. (2020) ECPV/CCJIJUD/04/20 (Unreported) where claims for compensation under the same Lemu Panel were scrupulously scruti ni zed to identified Lhose who were veri fied by the Pane l a nd the extent of their damagcs. 86. Jt is ax iomatic thaL a public institution enjoys the presumption o f regularity in the di:;charge or ils offic ial duties .:111d functions . To successfu ll y ovcn:omc such presumption of regu lari ty, case law demands !hat the evidence against it must be clear and convincing; absent the requisite quantum o f proof to the contrary, the presumption stands deserving of faith and credit. Tn this case, the burden ofproorto discharge such presumption lay with the Applicants. ·'The Court cannot take unpro ven allegat!ons at their f ace value. It is necessary.f<Jr applicants 10 substantiate the complaints they raise befhre the Court with evidence." See the case of /v!R. OUSi\i/ANE GU/RO v. BURKJNA FASO (2017) ECWICCJIJUDI I 5117 @ page 6. 87.ln their Application, the Applicants make much of the f. K( that their v ictim status has been established by the Lemu Pane l where a ll the nitty-gri tties of their case we re submitted and accepted by the Respondent who then earmarked compensation to that effect. The crux of the Applicants' case therefore is that they are left om of the compensation whic h the RespondenL confirmed it made provision for following the Report of the Lemu Panel. 88. Having hinged their claim on the Lemu Panel's Report. it is surprising thal the much refe renced report was not exhibi ted before the Court for iL to ascerta in the c laim of the App lie-ants thaL they were part ol'the verified victims LO be pa id compensation. l 89. While it is true. that this Court ca1rnot dictate what particular evidence the Applicants must present in order to prove the ir case, the fact remains that the Applicants are still bound to present clear and convine-ing evidence to suppo1t their claims. Proceeding the refrom, the Court remains unconvinced and might be engaging in speculation in an attempt to make any find ings that is grounded on the Lem u Panel's Report that has not been made available to the Court. 90.~ fost significant is the glarin g fac t that the Applicants lhcmst:lves have suited that their names were conspicuously missing from the list of persons to be paid from the allocated amount for compensation. The Court, however, is incompetent to interrogate this assertion of the Applicants in vacuum. 91. This Cou1t has not been invited lo re-evaluate the evidence already considered by the Lemu Panel. l\ilore importantly, to the extent that the evidence on record woefully rai led lo elic it any wrongdoing or impropriety on the part of the Lemu Pane l, their fi ndings and rec-ornmcndations contained in their final re port could have been o f immense help to the Court in the ascertainmen t or the veracity of the claims of the Applicants that they have been excluded as verified victims of the 20 11 post-election v io le nce. 92. The proof of the violat ion of the various a lleged hu ma n rights w hich makes them v ictims is a condition prec~dent to a find ing of violation by the Respondent or Article I of the Chmter on failure to fulfill its obligation. This obligation cannot be raised in vacuum it must be hinged on clear victims who suffered from the alleged fail ure or the obligation by the Respondent. As earlier stated, the Lemu repo,t is the fo undational document upon whic h tht: Applicants' claims are based, and hav ing failed to place it before the Court, a ll clai ms of the Applicants become unsu bstantiated and are thus dismissed. 93 . The crucial corollary of this is that having failed to establish that the alleged failure of the Respondent to fulfil its obligation has caused any harm, injury or loss, the Respondent cannot be held in vio lation of Articles l with regards to the A pplicants . OPERA TIVE CLAUSE: 94. For the reasons stated above, the C0un, adj udicating in a pu blic 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 instrnmenl!:i, and also the Protocol on the Court as amended and the Rules of Court, her by declares as (oJ lows: As to jurisdiction : a. Declares tl1at it has j urisdiction. As to Admissibility : b. Declares that the application is admissible for the 43 Applicants whose narnes arc endorsed on the Application. c. Declares tha t lhe application is not admissible regardi ng the I 06 other Applicants on grounds of anonymi ty. As to compliance with Rules o f the Court. d. Finds compliance by the Applicant with At1icle 28(3) of the Ru les of the Court. e. Finds compliance by the Applicant with Articlc33 (2) or the Rules of the Court. On l\llcrits of the case. a. Finds no vio lation o r lhe rig hts of the Applicants as provided for in A1ticles 2, 4, 6, 13( l ), 14 and 23( I) of he Charter, and therefore, as far as the Appl icants are concerned, no violation of the Respondent's duty to prevent and p rotect enshrined in Artie-le l of the Charter occurred. b. Dismisses all c laims of the Applicants. ON COST: l\o order as to costs. Signed: Hon. Justice Edward Amoako ASANTE - Presiding! J, Ho n . . Justice Dupe A TOKI -JVlember Hon. Justice Januaria T. Silva Moreira COSTA - Member . ' ._.. Q__ . ... ..... ... ' . . . Assisted by: Mr. Athanase AT ANNON - Deputy Chief Registrar Done in Abuja, this 9th of Day of lv1arch 2020 in Eng lis h and trans lated into French and Portuguese. 3L