Kodeih v Republic of Benin (Application No. 006/2020) [2020] AfCHPR 54 (28 February 2020)

00016 6 AFRICAN UNION UNION AFRICAINE .;ytt .rlrf,lt UT,IIÂO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES'RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES MATTER OF GHABY KODEIH V oob boa o Pr(oa (eoP o (ooot 6 a- ô oo r5f lY6 REPUBLIG OF BENIN APPLICATTON NO. 006/2020 ORDER FOR PROVISIONAL MEASURES 28 FEBRUARY 2O2O $UtÀAN Â IvD s§ istr LL AI DRo$5 The Court composed of: Sylvain ORÉ, President, Ben KIOKO, Vice- President, Rafâa BEN ACHOUR, Ângelo V. MATUSSE, Suzanne MENGUE, tvlarie-Thérèse MUKAMULISA, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, Stella l. ANUKAM, lmani D. ABOUD: Judges; and Robert ENO, Registrar. 00016Ir ln the lt/atter of GHABY KODEIH Assisted by Barrister lssiaka Moustafa, Lawyer in the Benin Bar Association, 02 BP 340 Gbegamey, Carré No. 1375 Gbedagba Sainte Rita, Tel: 21-32-15-21197-29-43- 89/90-91-24-69, email : issiamouss(@vahoo.fr Versus Republic of BENIN After deliberations, lssues the following Order I. THE PARTIES 1. Ivlr. Ghaby Kodeih, (hereinafter "the Applicant") is a Benin nationalborn on 13 November 1977, he is a businessman, residing in Cotonou, plot Q-9, les Cocotiers, sole proprietor and General Manager of the Hotel, Restaurant and Leisure Company (SHRL), a private enterprise whose capital is 120 000 000 CFA Francs with headquarters in Cotonou, C/57 Tokpa XOXO, Dako Donou Street, P. O. BOX 1342 Cotonou, registered at RCCIT/ under No. RB/COT 11 B 6968; 2. The Republic of Benin, (hereinafter "the Respondent") became a party to the African Charter on Human and Peoples Rights (hereinafter "The Charter") on 21 October 1986 and to the Protocol to the African Charter on Human and Peoples Rights on the establishment of an African Court on Human and Peoples' Rights, on 22 Augusl2014. 00016 4 3. The Respondent State, further, deposited the declaration under Article 34 (6) of the Protocol on 8 February 2016 thereby accepting the jurisdiction of the Court to receive applications from individuals and non-governmental organizationsl. II. SUBJECT MATTER OF THE APPLICATION A. Facts of the Matter 5 7 I I The Applicant affirms that a seizure procedure on a building covering an area of tha 54a and 34 ca, with land title (TF) No. 14140 in the Lands Register of Cotonou, belonging to the SHL Company where he is the sole proprietor has been initiated by Société Générale de Banque of Benin (sGB). Within this framework, the Court in Cotonou, seating as a last resort, dismissed his arguments and fixed the date of 30 January 2020 for auction sale of the building by Jean Jacques GBEDO, the Notary. The SHRL Company noted the appeal of the said judgement with adjournment from 3'1 December 2019 and notified all the parties in the said appeal as well as an application for auction. The Applicant contends that at the auction hearing on 30 January 2020, the Court dismissed the request for postponement of auction sale and suspended the matter and the parties pending the establishment of the record of proceedings. The Applicant affirmed that even though he received notification of the application for put off of the auction sale, the appointed Notary conducted the auction in favour of the SGB for the amount on auction sale, that is Seven Billion (7.000.000.000) CFA Francs, due to the absence of bidders and especially without awaiting the decision for the request of postponement of auction sale. The Applicant contends that as a judgment of the last resort of 19 December 2019, the Benin judiciary considered wrongly, that local remedies against this decision had been totally exhausted, which constitutes, according to him, a violation of human rights. 1 - L'Etat Défendeur a égal€ment ratifié le Pacte lnternational sur les Droit civils et Politiques le 12 mars 1992 ainsi que la Charte Africaine de la Démocratie, des élections et de la gouvernance, le 28 juin 2012 et le Prôtocole A/5P1/12/01 de la Communauté Economique des Etats de l'Afrique de l'Ouest (CEDEAO) sur la démocratie et la bonne gouvernance, additionnel au protocole relatif au mécanisme de prévention, de gestion, de règlement des conflits, de maintien de la paix et de la sécurité le 21 décembr€ 2001. L'Etat défendeu r est également partie à la Cha rte Africalne de la démocratie, les élections et de la gouverna nce ratifiée par la loi n"2011-18 du 05 septembre 201L. 0001ti 3 10. From there on, he became worried that if the change was done in the name of the auctioneer, or any third party beneficiary, the changed land title would become final and cannot be challenged through the application of the provisions of Article 146 (1) of Law No. 2017-15 of '10 August 20171o amend and complete Law No. 2013-01 of 14 August2Ol3 on the Lands Code of the Republic of Benin. B. Alleged violations 11. The Applicant alleges the violations by the Respondent State of Articles 7-1 (a),7-1 (d) and 14 of the African Charter on Human and Peoples Rights III. SUMMARY OF PROCEDURE BEFORE THE COURT 13. The Application comprising a request for provisional measures was filed at the Registry of the Court on 14 February 2020; Pursuant to Article 34 (1) the Registry acknowledged receipt on 18 February 2020 pursuant to Rule 36 of the Rules of Court, it was communicated on 18 February 2020 to the Respondent State requesting the latter to submit its response on the merits within sixty (60) days and on provisional measures within eight (8) days. 14. The Respondent State did not file any response on provisional measures IV. JURISDICTION OF THE COURT 15. 16. ln support of the admissibility of the application, the Applicant affirms, pursuant to Article 27(2) of the Protocol and Rule 51 of the Rules that in matters of provisional measures the Court does not have to convince itself that it has jurisdiction on the merits of the case but simply has to ensure that it has prima facie jurisdiction. Referring further to Article 3(1 ) of the Protocol, he averred that the Court has jurisdiction because, on the one hand, the Republic of Benin has ratified the African Charter, the Protocol and has made the declaration underArticle 34 (6) and, on the other, it alleges the violation of rights protected by human rights instruments. *** 17. When seized of an application, the Court carries out a preliminary examination of its jurisdiction pursuant to Articles 3 and 5 (3) of the Protocol and Rule 39 of the Rules of Court (hereinafter "the Rules"). J 00016,1 19. 20. 21. 23. Regarding provisional measures however, the Court recalls its constant jurisprudence according to which it does not have to ensure that it has jurisdiction on the merits of the case, but should contend itself with its prima facle2 jurisdiction. Article 3 (1) the Protocol provides as follows "the juisdiction of the Court shall extend fo a// cases and disputes submitted to it conceming the interpretation and application of the Chafter, this protocol and any other relevant human rights instrument ratified by the Sfales concerned". According to Article 5(3) the Protocol, "the Court may entitle relevant non- govemmental organizations (NGOs) with observer status before the Commission and individuals to institute case directly before it in accordance with Article 34(6) of this Protocol". The Court notes that the Respondent State is a party to the African Charter on human and Peoples Rights and the Protocol. lt has also made the declaration accepting the jurisdiction of the Court to receive applications from individuals and non-governmental organizations pursuant to Articles 34(6) and 5(3) of the Protocol read jointly. The Court further notes, that the rights alleged by the Applicant to have been violated are all protected under the Charter, and, accordingly, it has rationae materiae jurisdiction to hear this application. ln light of the above, the Court finds that llhas prima facle jurisdiction to hear the application. IV. PROVISIONAL MEASURES SOUGHT 24. The Applicant explains that in view of constructing a five (5) star hotel, he established the company SHRL with a capital of One Hundred and twenty Billion (120 000 000 000) CFA Francs, with himself as the sole proprietor and signed an agreement with ltilarriott Hotels & Resorts to enable him use their license. 25. Within the framework of implementation of this project ,was to come from the West African Development Bank (hereinafter'BOAD') to the tune of Seven Billion four Hundred million (7.400.000.000) Francs CFA Francs, from a banking consortium to the tune of Eleven Billion Nine Hundred Million (1 1.900.000.000) Francs CFA Francs and by his personal input of - Eleven Billion Seven Hundred and Fifty Three Million (11.753.000.000) CFA Francs. 2 Votr requête n'004/2013 Lohé lssa Konaté c. Burkina Faso (ordonnance portant mesures provisoires datée du 04 octobre 2013) et requête n'001/2015 Armand Guéhi c. République de Tanzanie (Ordonnance portant mesure provisoires datée du '18 mars 2016) ; requête n"020/2019 Komi Koutché c. République du Bénin (Ordonnance portant mesures provisoires datée du 02 décembre 2019). 26. 27. 29. 31. 32. 33. That was how by a notary agreement signed on 13 November and 16 December 2014, the banking consortium (comprising Société Générale de Banque in Côte d'lvoire (hereinafter "SGCI'), the Société Générale de Banque of Burkina Faso (hereinafter "SGBF") and the SGB), signed an agreement with the SHRL on a long term loan of the amount of Eleven Billion Nine Hundred Thousand (11.900.000.000) CFA Francs with an Addendum of 27 and 28 February 2017 on the mortgage of the building which has not been constructed covering an area of tha 54a 34 ca, belonging to the company SHRL and whose land title was No. 14140 in the Lands Register of Cotonou. The Applicant alleges that most of the suspensive conditions imposed by the BOAD for the disbursement of the loan were met by the SHRL and by himself, except those which depended directly on the SGB which were not met, being the fault of the latter, which led BOAD to annul the disbursement, whereas the construction of the hotel was almost over. Furthermore, the Applicant affirms, that the SGB unilaterally denounced the current account binding it to the SHRL and claimed from the latter the paymenl of the sum of Fourteen Billion Seven Hundred and Forty Nine Million Four Hundred and Twenty Five Thousand and Eight (14.749.425,008) CFA Francs following a real seizure order of 4 September 2019 aimed at an auction sale of the building. The SGB further deposited specifications on 1'l September 2019 at the Registry of the Cotonou Trade Tribunal (Benin). The Applicant alleges that it is within the framework of this procedure that at the eventual hearing of 19 December 2019, in which SHRL and him were parties, after the arguments made by the defence, the Court rendered judgement No. 14119/CS|/TTC against which SHRL filed an appeal and notified all the parties to the said appeal as well as an application for a postponement of auctioning. The Applicant contends that at the auction hearing of 30 January 2020, his request for postponement of the sale was thrown out by the Court. The Applicant affirms that the appointed Notary conducted the auction in favour of the SGB for the amount at sale, that is, Seven Billion (7.000.000.000) CFA Francs. The Applicant notes that in rendering the judgement as a last resort on 19 December 2019, the Benin judiciary considered, and wrongly so, that local remedies against this decision have been completely exhausted which constitutes, according to him a human rights violation. 0001ri fi ln this regard, he recalls that Article 300 of the OHADA Uniform Law on the Organisation of Simplified Procedures for Recovery and Execution (AUPSRVE) provides as follows "judgements rendered in matters relating to seizure of propefty are not subject to appeal. They shall only be subject to appealwhen they dealwith the same principle of debt or arguments relating to the inability of one of the parties, of the property, the impossibilities to seize or the inalienable nature of the goods seized. The decisions of the Court of Appeal shall not be subject to opposition. Local remedies are open in conditions of droit commun". 35. The Applicant contends that once the Court has adjudged the principle of an impugned loan, the judgement cannot be rendered as a last resort. 37. 38. 40 lnvoking Article 27 of the Protocol and Rule 51 of the Rules, the Applicant prays the Court to order the Respondent State to desist from changing the land title No.14140 volume LXIX folio 149 of the Cotonou District in favour of the Auctioneer or any third party beneficiary and any attempt at seizing the building from the Applicant, in executing judgement ADD No. 14l'19/CSI/TCC of 19 December 2019 pending the judgment on the merits of the application before this Court. To buttress his request for provisional measures, the Applicant alleges that in case of handing it over to the Auctioneer or any other third party beneficiary, the changed land title will become final and cannot be impugned pursuant to the provisions of Article 146 (1) of Law No. 2017-15 of 10 August 2017lo amend and complement Law No. 2013-01 of 14 August 2013 of the Lands and Domain Court of Benin. The Court notes that Article 27 (2) the Protocol provides as fol lows : "rh cases of extreme gravity and urgency and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as if deems necessary". The Court further recalls that Rule 51(1) of the Rules provides as follows: "pursuant to Article 27 (2) of the Protocol, the Court may, at the request of a pariy, the commission, or on its own accord, prescribe to the parties any interim measure which it deems necessary to adopt in the interest of the parties or of justice". Based on the foregoing, the Court will consider the applicable law in matters of provisional measures, which are preventive in nature and do not prejudge the merits of the application. The Court cannot order them pendente /ife except the basic conditions required are met, that is, extreme gravity or urgency and the prevention of irreparable harm on persons. 41. The Court notes that the Applicant is seeking a postponement of any change of name of land title No. '14140 volume LXIX folio 149 of the Cotonou District in favour of the Adjudicator or any other third party beneficiary and any other 00015 g 43 45 decision that will seize the building from the Applicant in the execution of judgement ADD No. 14l1g/CSI/TCC of 19 December 2019, pending the judgement on the merits of the application from this Court. The Court is of the view that it is endowed to issue orders for provisional measures not only in cases of "extreme gravity or urgency or when it is necessary to avoid irreparable harm" but also "in the interest of the pafties or of justice". To that end, the Court notes that following a property dispute in which the Applicant alleges violation of human rights, the property in question has been adjudged in favour of the Société Générale Benin. The Court notes that pursuant to Article '146 of Law No. 2017-15 of 10 August 2017 lo amend and complete Law No.2013-01 of 14 August2013 on the Lands and Domain Law of Benin, the land certificate is final and cannot be questioned. ln view of the following, the Court finds, that in the instant case there is a matter of extreme gravity or urgency, same as a risk of irreparable harm because the change is done through a new registration on the land title which will become finaland unquestionable. The Court therefore finds that circumstances in the instant case require it to order immediately and pursuant to Article 27(2) of the Protocol and Rule 51(1) of the Rules, the suspension of any change of ownership of the land title No. 14140 volume LXIX folio 149 of the Cotonou District in favour of the Auctioneer or any third party beneficiary and to halt any measure aimed at seizing the building from the Applicant, in execution of judgement ADD No. 14l19/CSI/TCC of 19 December 2019. 47. To avoid any confusion, the Court wishes to state precisely that this order does not in any way prejudge its findings on the jurisdiction, admissibility and merits of the application. V. OPERATIVE PART 48. For these reasons THE COURT, Unanimously Orders the Respondent State to i) Stay and change of ownership of the land title N"14140 volume LXIX folio 149 of Cotonou district in favour of the Auctioneer or any other third-party beneficiary and to any decision to seize the building from the Applicant in the implementation of judgment ADD pending consideration of the merits of the case by this Court. 00015 b ii) Report to the Court within fifteen (15) days as from the date of reception of this order, on measures taken to implement them. Signed: Sylvain ORE, President; Robert ENO, Registrar; Done in Arusha, this 28th day of the month of February 2O20, in English and French, the French text being authoritative. s§ $UMAN sÉr ê^ q* 0Rolrs I