Mrs Sarah Kingsley Odoro v ECOWAS Commission and Others (ECW/CCJ/APP/33/18; ECW/CCJ/JUD/06/21) [2021] ECOWASCJ 29 (10 March 2021)

COMMU~ ITY COURT OF JUSTICE. ECOIVAS : :·01. R DE JlJST ICF DE LA COM~lt:ls:ATF. CEDEAO TRIHl ·:--1\L DE JLSTIC1\ D.-'\ C:OY!Ml.,J[) .\ DF. C Ff),:,',,O No. 10 DAR ES SA I./\AM CRESCENT orF A VI INL: KANO CRESCENT. WUSE II . /\RUJA-J\JC ERIA. rrvtn 567 (iARK I. ADU. IA TEI.: 234-9-78 22 80 I \\.c-bsi tc: t·. w~1·.cuur1ecow<1s.,Ng THE COi\tlMUNITY COIB{l' Of JUSTICE OF THE ECONOMlC COM1vfUNITY OF \VEST AFRlCAN ST A TES (ECO\. VAS) In the l'vfatter of MRS SARAH KINGSLEY ODORO V. ECOWAS COMMISSION AN D 2 ,tpplica1ion No: ECW!CCJ/Af'l'/33//8, Judy;mem No. FCW/CCJ!. JUD/0612 1 ORS JUDG1l1ElVT 10 March 2021 JVrRS SARAH KINGSLEY ODORO APPLICANT V. I. ECOW AS COl\tlMISSION 2. ECOW AS BANK FOR INVESTlYlF. NT AND DEVELOPJ\tlENT 3. MR KINGSLEY OBTONDOMO ODORO COMPOSITION OF THE COURT: Hon. Justice Gberi-Be OUATTARA - Presiding Hon. Justice Dupe A. TOKI - i'v1ember/Judge Rapporteur Hon. Justice . Tanuaiia T. Silva Moreira COSTA -Member ASSISTED BY: Mr. Tony ANENE- MAIDOH - Chief Registrar REPRESENTATI01V OF PARTIES: i\1arcellinus MARSHALL, Esq. - Counsel for Applicant Frank Ike CHUD E - Counsel for Respondent J. JUDGJl1ElVT: l. This is the judgment of the Court read virtually in open court pursuant to Article 8(1) of the Practice Directions on Electronic Case Management and Virtual Court Sessions, 2020. II. DESCRIPTION OF THE PARTIES: 2. The Applicant, 1vfrs. Sarah Ki ngsley Odoro is a Community citizen who resides in Akwa Ibom State of the Federal Republic of Nigeria. 3. The p t Respondent, the ECO\VAS Commission, is an Institution of lhe Community, a public inte1uational organisation of fi fleen me1nber States of \Vest Africa, established by virtue of Article 6 of the Revised Treaty. 4. The 2nd Respondent, the ECO\V AS Bank for Investment and Development is the financ ial institution of the Community, established by virtue or Article 6 of the Revised Treaty. 5. The 3rd Respondent, tvlr Kingsley Obiondomo Odoro, is a Conununity citizen and an employee of the 2'"1 Respondent, who is the Applicant's husband. Ill. J1VTRODUCTION 6. The subje<.,"t matter of these proceedings arises from the allegation of the Applicant against the 3rd Respondent for allegedly violating her rights under ID Articles 4, 5, 6, 12 and 14 of the African Charter on Human and Peoples' Rights (African Charter), and Articles 3 and 4 of the Protocol to the African Chmter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol). IV. PROCEDURE BEFORE THE COURT 7. The Initiating Application was filed on 3 August 2018 and served on the Respondents on IO August 20 l 8. 8. The 1st and 2nd Respondents fled their Preliminary Objection to the Application on grounds of misjoinder on 10 September 2018, and this was served on the Applicant on 14 September 2018. 9. The 2nd Respondent filed a 1vfotion for an Order of the Court to strike out the 2nd Respondent from the suit on 9 October 2018, which was served on 9 October 2018. I 0. The Applicant's reply to the Preliminary Objection of the I" and 2nd Respondents was filed on 29 October 20 18 and served on 30 October 2018. 1 I . The 3rd Respondent filed his Statement of Defence on 15 November 2018, which was served on 19 November 2018. 12. Having failed to file their Statement of Defence within the set time limits, the p t and 2nd Respondents filed a Motion for Extension of Time to file their Statement of Defonce. on 14 December 2018. This was served on the Applicant on 15 December 20 J 8. 13. The I" and 2nd Respondents also filed their Statement of Defence on l4 December 2018, and this was served on 15 December 2018. 14. The ! st and 2"d Respondents/Applicants tiled a l\1otion on NoLice for an Order of the Court declaring the act of the Applicant/Respondent an abuse or Court processes for instituting the suit and not taking diligent steps to prosecute same on l O July 2020. V. APPLJCANT'S CASE a) Summary of facts 15. The Applicant's case is to the effect that she and the 3rd Respondent contracted a customary law rnan-iage under the native laws and customs of the lbibio ethnic group of Nigeria, in Nove1nber 1995. This was followed with a church blessing in December 1995 and a civil man-iage at the °tvfa1Tiagc Registry in Abomey Calavi Local Government Area of the Republic ofBcnin on 5 March 1997. 16. She informed the 3rd Respondent about her son whom she had before meeting him, and the latter accepted and adopted him. He was then named Ukeme Odoro. The Jrd Respondent thereafter took on the responsibility of taking care of him including his education and other related expenses. 17. Before their marriage, the Applicant avers that the 3rd Respondent wo rked as a local staff of the Nigerian Embassy in Cotonou, Benin Republic and the meager salary earned was insurncient to take c.are of their welfare. She claimed that through the funds she realized from trading in Cotonou, she was able to support him both before he secured his present job with the 2nd Respondent and during the period or the job application and interview. 18. She continued that upon commencement of work with the 2nd Respondent, the 3'J Respondent was able to save enough money to purchase land in Akwa Tbom slate in Nigeria, Togo and Ghana where they built duplexes and bought about six cars. 19. She recollected with nostalgia the peaceful life they lived for some years while waiting to have a child of their own, which fai led despite several medical interventions. Furthermore an attempt to adopt a child was truncated by the 3rd Respondent's family, who advised him to take a second wife instead. 20. The Applicant recounted that subsequently the Jr " Respondent's behavior changed as he resorted to threatening to kill her and her son, subjecting her to physical assault including incessant beating, torture, inhumane and degrading treabnent. This she claims amount to violation of her right as a woman and a diplomat. 21. She further stated thal following this troubled period in their lives, the 3rd Respondent filed divorce proceedings against her in Lome, Togo but the Court ordered him to withdraw his case and institute the petition in Nigeria. 22. The Applicant claimed that thereafter, the 3rd Respondent became more aggressive towards her and her son while the violence earlier above enumerated continued which one of the occasion led to his brief detention at the Police station in Hadzranawoe, Lome in Togo following her complaint. He was later released due to his status as a diplomat. 23. The 3"1 Respondent then illegally married a woman whom he lodged in the second building they owned in Lome, Togo, having forceli.tlly ejected her and her son from their mat1imonial home. Consequently, they have been exposed to danger, hardship, pain and left to wander about homeless. b) Pleas in law 23. The Applicant relies on the following laws: 1. Article 4 of the A ftican Chaiter on Human and Peoples' Rights (Charter), on the right to I ife; 11. Article 5 of the Charter m: the prohibition of torture, inhuman and degrading punishment or tn:atment; 111. Article 6 of the Charter on the right to libe11y; w ~ 1v. Alticle 14 of the Charter on the right to property; v. Article 3 of the Protocol to the African Charter on lluman and Peoples' Rights on the Rights of \1/omen in Africa (Maputo Protocol), on every woman's right to dignity and the protection of her human and legal rights; vi. Article 4 of the wfaputo Protocol on the rights to life, integrity and securi ty of the person. c) Reliefs sought 24. The Applicant's prayers are as follows: 1. An Order of the Court enforcing and securing, within \Vest Af1ica and any part of Nigeria, the Applicant's right to life, freedom of movement, personal liberty, right to her property and right to dignity. 11. A Declaration of the Court that the unlawful ejection of the Applicant by the 3"1 Respondent from their home, without settling her is null and void and a violation of her rights as a person and a woman. 111. An Order or the Court that the I st and 2nd Respondents as employers of the 3rd Respondent should immediately intervene and mandate the 3rd Respondent to allow the Applicant access to their buildings especially the one situated at Hedranowoe in Lome, Togo. 1v. A Declaration of the Court that locking the Applicant out of their building in Lome, Togo and any other building deriving from the marriage is a gross violation of her rights as a person and woman. v. An Order of the Court restraining the 3rd Respondent, his agents, servants or privies from further harassing, intimidating, beating, embarrassing, torturing and subjecting the Applicant to inhuman and degrading treatment. v1. A Declaration of the Court that acts of the 3"1 Respondent are in violation of the human rights of the Applicant in breach of Articles 4, 5, 6 and 12 of the Charter and Articles 3 and 4 of the Maputo Protocol. vu. An Order of the Court mandating the 1 s, and 2nd Respondents to caution or sanction the J'd Respondent for the incessant violation of the Applicant's human rights as a person and woman including threats to the Ii fe of the Applicant and her son Ukeme Ocloro. v111. An Order of the Court that the Applicant is entitled to some of the property (buildings, cars etc.) deriving from the marriage having been married for about 23 years to the 3rd Respondent and being instrumental to the acquisition of the properties of the marriage. 1x. A Declaration of the Court that the forcefu l ejection of Ukeme Odoro from the house he lived in with the 3"1 Respondent and Applicant after the marriage, leaving him stranded and wandering homeless in Lome, Togo is illegal and a violation cf his rights. x. An Order of the Court that the Applicant and Ukeme Odoro are entitled to one hundred and twenty million Naira (N 120,000,000), as compensation for the incessant bating, torture, harassment, embarrassment and violation of their rights to personal liberty, freedom of movement, right to life. and inhuman and degrading treatment by the 3rd Respondent. VJ. RESP01VDENTS' CASE pt and 2"d Respondent's case 25. The JS' and 2nd Respondents that is the ECOWAS Commission and the ECO\. VAS Bank for Investment and Development raised a Preliminary Objection challenging the j urisdiction of the Court based on the following grounds: ,. H. That they are not proper paities and have been misjoined in the action. The Application is not of an international character. This Preliminaiy Objection will be addressed under juiisdiction below. 26.ln addition to the objection raised the I st and 2nd Respondent filed a defense where they deny every allegation of fact narrated by the Applicant in her Application. They assert that the Applicant is fi.)rum shopping by bringing this suit before the Court. 27. Specifically. they assert that they are not parties to the alleged marnagc between the Applicant and the 3rd Respondent neither did they have knowledge of what transpired between them before and during the said the marriage. 28. Thcy state that they are not responsible for the alleged divorce petition filed against the Applicant in Lome, Togo and are neither aware of the Temporary Separation Order nor any other orders by any judge. Since they arc not parties to the suit, are not bound by such orders. 29. They also deny knowledge of an illegal marriage between the Jrd Respondent and a third party and are not in the position LO know the whereabouts of the said Ukeme Odoro 30. They emphasize that they do not meddle in the domestic affairs of individuals and they are not aware of or responsible for the security threat to the life of the Applicant. 1n any case, it is their contention that such issues are to be determined by a competent court other than this Court. Reliefs Sought by tbe 1'1 and 2nd Respondents 31. The 1st and 2'"1 Respondents urge the Court to dismiss the Applicant's suit in its entirety as it relates to them, as the suit is frivolous, vexatious and an abuse of com1 processes. 3rd Respondent's Defence to the Application a) Summary of fact-s 32. The 3rd Respondent denies each and every allegation of fact stated by the Applicant in he r Applicalion, but admitted that he was married to the Applicanl for twenty-three (23) years; however, be claimed that a court of competent jurisdiction dissolved t1le marriage between them on 27 July 20 18 before this suit was filed . 33. Specifically, the 3"1 Respondent deny the allegation that the Applicant assisted him financially al any point in their marriage, especially regarding the expenses to attend the interview for the job, as the Institution made adequate provision for this. 34. He said that Contrary to the Applicant's claim that he neglected her and her son, he tried his best d uring the period they were married to provide for the Applicant and her son Ukeme Odoro, whom he adopted whole heartedly and paid for his education from primary school to secondary schools in repulable institutions. One of which is the University of Bemidji, Minnesota, United States of Alnerica, where he paid sixteen thousand, eight hundred and fifty thousand United States Dollars ($ I 6, 850.00) per academic session. Unfortunately, Ukeme was deported for an offence contrary to the laws of the United States. 35. He stated that on the contrary, lhe Applicant is dishonest, duplicitous, and a blackmailer who he has had to hai l out of several debts after defrauding unsuspecting persons. That when she was remanded in pnson for three weeks after she was investigated and convicted, he visited her oflen and ~ continued to care for her until her release following his payment to all persons she had defrauded. 36. The 3rd Respondent recounted conducts unbecoming as a wifo as lhe Applicanl was fond of disappearing from their home, sometimes weeks without communication, only to surface to pick up her montl1ly allowance him. One of such is when three days after her release from prison, she left their home for her parent's home in Uyo, Akwa !born Nigeria, without informing him but reporting to her parents that he sent masked men to trail and kidnap her. 37. The 3rd Respondenl made several other assertions m his defence but concluded that the Court lacks jurisdiction to determine a dispute between two ordinary individuals. b) Relief sought 38. The yd Respondent urges i.he Couit to dismiss the Application for being an abuse of cou1t process and unmeriLorious. Vil. JURISDICTION Preliminary Objection 1. Arguments of the I51 and 2nd Respondents on not being proper parties. 39. The pt and 2nd Respondents argued that the facts relating to the case arc completely unknown to them anc. they should not have been joined in the Application. 40. They state that before one can be rightfully joined as a party to an action, such a party must be a proper party against whom a cause of action has been shown. from the facts pleaded by the Applicant, she has no cause of action against them and consequently, they cannot be joined as pa1ties to the suit. 41. The 1 s, and 2nd Respondents urge the Court to strike out their names from the Application in light of the fact that they are not proper parties, or necessary paities to the suit. i. Argument that the dispute is not of an international characf·c,-. 42. The 1st and 2nd Respondents contend that this Application is not of the category or human rights violation that the Court ought to entertain. That the Court's power to entertain claims for human rights violation is conferred by Articles 9( 4) and 10( d) oflhe Supplementm·y protocol. 1\Jticle 9( 4) provides, "The Court has jurisdiction to determine cases of violation c?f'human rights that occur in any member States" and Article 10( d) provides, "Access to the Court is open to ... individuals on application few retie/for violation o_f their human rights ... ,. 43. They canvass that the issue to be determined by the Court in the present case is whether the Application can be interpreted as a dispute of international character which they answer in the negative since the facts of the case clearly point to domestic issues, which must be heard by a national court of competent jurisdiction. 44. Tn support of their contention they cite the holding of the Court in the case of PF. TER DAVID V AMBASSADOR RALPil UWECHUEHE, (2010) CCJEI. R PAGF. 213, where it stated that, 40 ''In this regard. the Court emphasizes that it is an international Coun established by a Treaty and by its nature, it should primarily deal with disputes of international character." 45. They submit that the position of the Cowt above referred is well supported by other international human rights courts and tribunals such as the United Nations Human Rights Council, t!te European Court of Human Rights and the African Court on Human and Peoples' Rights. 46.ln concluding, the l st and 2nd Respondents submit that the Court cannot entertain the Application as it lacks jurisdiction to hear matters or a domestic nature notwithstanding the fact that violation of human rights have been alleged. c) Pleas in law. 1. 11. A1iicle 9( 4) of the Supplementary Protocol; Article 10( d) of the Supplerner.tary Protocol. e) Reliefs sought 1. An Order of Court striking ou: the names of the 1st and 2nd Respondents from this suit on the ground that they have been wrongfully joined; 11. An Order striking out the Applicant's application in its entirety on the ground that the Cou11 lacks jurisdiction lo entertain the action; 111. Such other Orders as the Couti may deem fit to make under the circumstances. Applicant's Response to Preliminary Objection 47. The Applicant combined her response to the two-pronged Preliminary Objection of the I" and 2nd Respondents to the effect that they were properly joined in this action and that pursuant to Article 9( 4) of the Supplementary Protocol, the Court has jurisdiction to entertain the Application. 48. The Applicant states that the I 51 and 2nd Respondents are proper paiiies to the Application because the 3rd Respondenl is an employee of the 1st and 2nd Respondents and he had on several occasions flaunted this position to escape liabilities or cover his 1\. TOngdoing. That the 3'." Respondent hides under the veil of his employment with the 1" and 2nd Respondent to violate the rights or the Applicant. 49. She funher submits that the maller has to do with her fundamental rights which is within the purview of the Court's jurisdiction, pursuant to Article 9( 4) of the Supplementary Protocol. SO. Additionally since these rights were violated in both Nigeria and Togo a National Court will not entc1tain a matter in which the cause of action arose from two different countries. That since both countries are Member States of the CoLnt, only this Court can adjudicate on such a matter. 5 I. The Applicant concluded that th~ issue for detennination is whether the rights of the Applicant was violated within the tenito1y of a wfember State of ECO WAS. Since the answer is in the affirmative, she submits that the Court has power and jurisdiction to entertain the matter and urges the Court to so hold. b) Reliefs Sought by Applicant 1. An Order of the Cou1t dismissing the Preliminary O~jection of the 1 sl and 2••d Respondents on the ground that the facts and law cited are misleading, unfounded and UO'WaJTanted abuse of the process of the Court; 11. An Order of Court affirming that all the parties in the action arc properly constituted; 111. A Declaration that the Court has jurisdiction to entertain the Application; 1v. And such other Orders as the Court may deem fit to make in the circumstances to protect the rights of the Applicant as a human and woman. Analysis of the Court 52. The 1'1 and 2"d Respondents jointly raised a Preliminary Objection challenging the jurisdiction of the Court lo hear this Application on the basis that the l" and 2"'1 Respondents are not proper pa1ties in the instant Application and also that the Application is not reflective of an international character. The Applicant insists the Court has jurisdiction over this case. The Court will address each objection seriatim. On allegation that the JS' and 2nd Respondents are not proper parties 53. The case of the 1st and 2nd Respondents is that the Cou1t lacks jurisdiction to adjudicate over this Application, as they are not proper patties to it. They argue that before a party can be rightfully joined in a case, a cause of action must exist against such party. 1t is their contention that from the facts pleaded by the Applicant, she has no cause of ac tion against them therefore, they cannot be joined as partie~ to the suit. Ln all, Lhe Court lacks the jurisdiction to hear the instant application. The Applicant on her part maintains that the l st and 2nd Respondents were rightfully joined as pa1ties to the Application, on the ground that they are employers of the 3r<1 Respondent, who has consistently used his status as an employee as a veil to commit the violations alleged 54. In addressing this objection, the Court reaffirms that J u1isdiction is the foundational competence that a court is clothed with to adjudicate on a dispute filed before it, which cannot be assumed or ousted by implication. This is determinable from the statute creating it and/or the reliefs claimed by the applicant. This Court has a p lethora of jurisprudence on the nan,re and importance of jurisdiction and how same ought to be inferred or established. Below is an extract of a decision of the Couit which proffered the fundamentals of Jurisdiction as tht:s: "Jurisdiction is.fimdamenta! to any suit before a court. As a general rule,jurisdicLion is Inferred.from the Plaintiff"s claim and in deciding whether or not this court has jurisdiction to entertain an action, reliance has to be placed on the.facts as presented by the Plaintiff Lhe Protocols of the Court, as well as the jurisprudence of the Court. "See FHSTUS A. O. O(ilvUCI-IE VFEDF. RAL REPUBLIC OF N!GiiRIA. ECW/CCJ/JUD!02/18@pg. 10. 55. Tn further exposition of above the Court held that: "The competence of a court Lo adjudicate on a matter is a legal and consLitutional prerequisite wilhout which a court is a lame duck. Courts are creatures of Statutes and theirjurisdiction is confined, limited and circumscribed by the Statutes, which created them. A court cannot in essence give itselfor expand its jurisdictional horizon by misapproprialinf: or misconstruing statutes. " See TIOPE DEMOCRAl'IC PARTY & I OR V. TIIE FEDERAL R. EPCBLIC OF NIGERIA & 5 ORS . HJDCJMENT NO ECW/CCJ!JUD/19/15 @ pg. 10 See also REV. FR. SOLOMON MFA & 11 ORS v. FEDERAL R. EPUilLIC OF NIGERIA & 5 ORS .llJDG'.vfFNTNO ECWiCCJ!JUD/06/19 '.ii) PAGE. 10. 56. From the above, the Court must of necessity look first to the statutes establishing the Court and then the reliefs contained in the JJ1itiating Application of the Applicant. 57. The Community Comt of Justice is a creat10n of statute and Protocol (AiSP.1/01/05) amending Protocol A/P. l.7/91, which established the Court sets out the various disputes over which the Court has jurisdiction. Article 9(1) of the said Supplementary Protocol provides thus; The Court has competence to adjudicate on any dispute relating to the fh!Lowing: a. The interpretation and application of the Treaty, Conventions and Protocols of the Community; b. The interpretation and application of the regulations, directives. decisions and other subsidiary legal instruments adopted by ECOWAS; c. The Legality <>[regulations, directives, decisions and other legal instruments adopted by ECO~VAS. d. The fi:1iLure by 1t1ember States to honor their obligations under the Trea/y. Conventions and Protocols, regulations, directives. or decisions of ECOWAS; c. The provisions of the Treaty, Conventions and Protocols, regulations, directives or decisions ofECOJYAS )dember States, f. The Community and its officials: g. The action/or damages against a Community institution or an o.f]iciaL of the Community for any action or omis3 ion in the exercise of official fimctions. 2. The Court shall have the power :o determine any non-contractual Liability of the Communily and may order the Community to pay damages or make reparation for official cu.;ts or omissions of any Community institution or Community officials in the perfhrmance of official duties or/unctions. 3. Any action by or against a Community Institution or any 1t1ember of the Community shall be stattlle barred after three (3) years.from the date when the right of action arose. 4. The Court has jurisdiction to determine cases of violation of human rights that occur in any 1'vfember State. 5. Pending the establishment of !he Arbitration Tribunal provided fhr under Article 16 of the Treaty, the Court shall have the power to act as arbitrator for the purpose o/Artic/e I 6 of the Treaty. 6. The Court shall have jurisdiction over any mailer provided jhr in an agreement where Lhe parties provide that the Court shall settle disputes arising from the agreement. 7. The Court shall have the powers conferred upon ii by the provisions of1his Protocol as well as any other powers that may be conferred by subsequem Protocols and Decisions of the Community. 8. The Authority of Head5 r.if' State and Government shall have the power to grant 1he Court the power to acijud.icate on any spec(fic dispute that it may refer to the Court other than those spec(fi.ed in !his Arlicle. 58. r n view of the claim by the 1 s, and 2'"1 Respondents that they are Institutions of the Economic Community of West African States vide their Preliminary Objection; the relevant article for consideration from the above list is paragraph (g) supra. This provision grants the Court jurisdiction to adjudicate on "action for damages against a Community Tnstitution or an ()fficial of the Community for any action or omission in the exercise ()f officialfimctions. ·" 59. Bcfore addressing the content of the above paragraph viz. a viz. the allegation and claim of the Applicant against the I" and 2nd Responden ts, it is necessary at this point to determine who are Community Institutions and if I ',J the 1'1 and 2nd Respondents qualif/ to be so referred. A perusal of the Statute whereupon the Community lnstitutions derive their existence is imperative l 993 Revised Treaty or the ECOWAS, which established the ECOVv'AS as the Regional Economic Community for its 15 this wise the and in ~1ember States is instructive. Atticle 6 of the said Treaty provides as follows: The institutions of rhe Communily shall he: a. The Authority of Heads of State and Government b. The Council of :'vfinisters c. The Community Parliament d. The Economic and Social Council e. The Community Court of Justice f The Executive Secretariat g. The fund for Co-operation, compensation and Development 1iow Known as J::COWSA Bank for lnvestmenr & Development (EB!D) h. Specialised Technical Commissions, and i. Any other institutions that may be established by the Authority. 2. The institutions of the Community shaLL perfhrm their functions and act within the limirs of the power conferred on them by this Treaty and by the Protocol relating thereto. 60. The I·" Respondent is captured in paragraph ( t) as the Executive Secretariat, which was amended to read "Commission of the Economic Community of \Vesr African States" in Atticle I of Supplementary Protocol i\/SP/06/06 amending the Revised Treaty. The 2nd Respondent equally refe renced in paragraph (g) as The Fund for Co-operation, Compensation and Development was established as the "ECO\. VAS Bank for Investment and Development" (EBID) tn Article 21 of the Supplementary Act A/SA.9/01/07, which reads, "An ECOWAS Bank for lnvestmenl and Development (FBID) is hereby established." 61. The above reviewed statutes establish accurately as claimed that not only are the Is, and 2nd Respondents Community Institutions but also that they can be sued. This has further been clarified by the Court when it held as follows, "Within rhe JiCOIYAS Community, apart from iv/ember States, other entilies that can be brought to this Courtji.>r alleged viola/ion of human rights are the Ins ti tu/ions of !he Community because, since !hey cannot, as a rule, be sued before the domestic jurisdiction, the only avenue left to the victims seeking redress /or grievances against those instilutions is the Community Court of Justice." See PETER DAVID VS. AMBASSADOR RALPH UWECIIUE (2010) CCJF. J. R PAGF. 226, PARt\CiRAPH 47. 62. lt is now clearly undisputable that a) the F ' and 2nd Respondents are Community Institutions b) also that they can be sued for grievances against them, thus confeJTing a prima facie jurisdiction on the Court in this case. Howe ver the contention of the 1st and 2nd Respondents is that despite the fact that they are Community Institutions they are not proper parties to be sued in the instant s uit with the consequence that the Court lacks jurisdiction to preside over the matter. 63. The next question to answer is who are proper parties to a suit? The prerequisite ingredient to determine whether a person legal or otherwise has been properly brought before the Court thereby making him a proper pa1ty in an action i~ the establishment that a cause of action can be maintained against such person. ln other words that the complaint, grievances or claims of the applicant can be credited to the said party. The Court has in a plethora of decisions elaborated the concept of cause of action which it has held to be, ''A set of circumstances giving right to an erifhrceable claim, it is the.fact or combination cif.facts which gives rise 10 a right to sue and it consists of two elements: the wrongful act of the defendant which gives the p!aintijf his cause qf complaint and the consequential damages" See IIANS C.,.\PEHART WILLIAMS SR & !OR VS REPUBLIC OF LIBERIA & 4 ORS Jl; (,DMF,NT NO F. CWiCCJ/J UD/25/ 15 @ PAGE2I. 64. Furthermore tl1e Court held that, "A cause <>/'action is a matter.for which an action can be brought, a legal right predicated on facts upon which an action may be sustained. it is the right to bring a suit based on factual situations disclosing the e.rJsience (>la legal righ1. Tt is often used to sign(/y the subjecr matter of a complaint or claim on 1vhich a given action or suit is grounded whether or no, legally maintainable." See INCORPORATED TRUSTEES OF FISCAL A;-.1D CIVIC RIGHTS ENLIGHTENtvtENT FOUNDATION V. FRI\ (20 16), EC WiCCJiJUD/16/18. 65. A more succinct definition of a cause of action was proffered as follows; ''the reason or 1he.fc1cts thai entitle a person to sue or bring his case io the Court, or a f actual situation that entitles one person io obtain from the Court a remedy against another person,.. LETANG V. COOPER (1 960) 2 !\JI ER 929 66. The cul mination of the above jurisprudence in summary is the necessity t<) show that the wrongful acts complained of by the Applicant associates the said party. 111 determining this, lhe Court must of necessity he guided by infractions for which a Community Tnstilulion can be held responsible for under the law. As earlier stated, Article 9(g) is the appropriate provision relating to the jurisdiction of the Court under the Article 9 of the Supplementary Protocol which clothe the Cou1t with competence to adjudicate on dispute concerning Community Institutions and it reads thus; "ac1ion fr. Jr damages against a Communily Institution or an official of the Community fi,r any action or omi.1sion in the exercise of o/Jicia!fimctions". The implication of the article above- refoJTed is that an action against a Community Institution must establish that act or omission was canied out hy the Institution in an official capacity for which damages is being claimed. 67. The Court recalls that the fa<.:ts of this Application is premised on an alleged domestic dispute between the Applicant and the 3rd Respondent who have been married for many years with additional claim of several violations of the human rights of the Applicant by the 3rd Respondent all contrary to the provision of the African Charter on Human and Peoples Rights. The gamut of narration of the Applicant's case does no! identify any infraction that can be credited to the l st and 2nd Respondents, which amoLU1ts to either an official action or omission on their pait as they are all matters concerning disputes in their matrimonial home. Instead the Applicant alleges that they are employers of the 3rd Respondent, who has consistently used his status as an employee as a veil to commit the various human rights violations alleged. Little wonder the 2nd Respondent is described in the Initiating Application as being "under the /-" Defendant 's Commission and the employer of the ] rd Defendant." While the 1" Respondent is also described as "an organization in West Aji-ica and the main engine room of all ECOPVAS programmes, projects and activities." 68. The facts of this case clearly fail to implicate tlle 1st and 2nd Respondents as falling within the ambit of Art 9(g) or !he Supplementary Protocol of carrymg om an act or omission in official capacity by a Community Institution. 69. The Court in further addressing the daim of the ($1 and 2nd Respondents, that it lacks jurisdiction over them, il will as earlier indica ted look into the Applicant's claim to determine whether they support the competence of the Cou1t or otherwise. The Court notes that of all the Len reliefs claimed by the Applicants listed in paragraph 26 supra, which border mainly on reparation for alleged human rights violations by the 3"1 Respondent, only two of the said reliefs referenced the 1-'1 and 2nd Respondents. For clarity purposes both claims are reproduced below: i. Order 3- "An Order r~f' the Court that the I" and 2nd Respondents as employers of the 3rd Respondent should immediately intervene and mandate the 3rd Respondent lo allow the Applicant access to their buildings especially the one situated at Hedranowoe in Lome, Togo. " ii. Order 7- "An Order of the Court mandating the /-" and 2"" Respondents to caution or sanction the 3rd Respondent for the incessant violation of the Applicant's human rights as a person and woman including 1hreats to the life of the Applicant and her son Ukeme Odoro. " 70. As earlier indicated, jurisdiction is inferred from the Applicant's claim. [l is clear that these two reliefs sought against the I si and 2nd Re!>pondents do not establish a cause of action within the contemplation of A11icle 9 (g). Indeed, the reliefs claimed against them are not commensurate with reparation for any act or omission carried out in the official capacity of the 151 and 2nd• For instance, the Applicant is seeking an order of the Court to compel them to mandate the 3rd Respondent to allow the Applicant access to all the family buildings as well as an Order mandating them to caution or sanction the 3rd Respondent for violating the Applicant's human rights. These reliefs are as un lawful as they are outrageous. lt is inconceivable that an employer will be made a subject of litigation and held culpable for an alleged violation of human rights by his/her staff against his spouse. In the least, this Application is an abuse of Coutt process. 71. The Court without hesitation holds that it lacks jurisdiction to entertain this suit tor reasons articulated above thus their name is struck out thereof. ii. On allegation that the Application is not o f internati.o nal cha racter 72. Thc second leg of the Preliminary Objection of the I st and 2nd Respondents challenging the jurisdiction of the Court is based on the assertion that the Application is not of an international character, as the facts presented before the Court are domestic in nature and do not qualify to be interpreted as a dispute of international character. They state that human rights violations in this case as presented by the Applicant cannot be interpreted as a dispute or an international character. They therefore submit that the Cou1t cannot entertain the Application as it lacks jurisdiction to hear matters or a domestic. nature even when they arc for claims of human rights violations. 73. The Applicant in response argues that pursuant to Article 9( 4) and l O of the Supplementary Protocol, the Court has competence to exercise jurisdiction over the Application as it deals wi:h allegations of violations of fundamental human rights provided in the African Charter. Ana lysis o f the Court 74. It is a widely accepted pri nciple t.1at international Courts and Tribunals are creation of international Treaties or Statutes and as such can only avail themselves to cases of international character. In essence the dispute mus t arise from and be provided for by an international Treaty signed by the Respondent State. Consequently, al leged violations with seemingly human rights colorations carried out within Member State will only be adjudicated upon if is devoid of National flavours. A proper case before an international court such as the Community Court of Justice must exhibit not only facts of alleged violation of an international instrument but also that the alleged pc1petrator is a Member State and signatory to the said instrument. This is vital in order not to set itsel r in coJiision with National Courts. 75. The Court is of the opinion that the above reflects the objection raised by the I" and 2"<l Respondents which it aligns with while recalling its previous decision where this principle was holistically captured as follows, " ... the Court emphasizes that it is an international Court esiahlished by a Treaty and, by its own nature, it should primarily deal with disputes of' international character. There.fbre, it essentially applies international law where it has to find out the source of the laws and obligations, which bind those who are subject to its jurisdiction . ... the Court recalls that the international regime of human rights protection before international bodies relies essentially on treaties to which States are parties as the principal subjects of international law. As a matter (>/fact, the international regime of human rights imposes obligations on States. All mechanisms established thereof are directed to the engagement <'>/State responsibility.for its commitment or failure toward those internation~l instruments. " PETER DAVID VS. AMRASSADOR RAT. PH UWECHUE (2010) CCJELR, PAGE 224, PARA 40 & 42. 76. The Cou1t in further e laboration of this principle held as follows; "This principle is easily explicable: the international instruments, international by definition. as invoked by those bringinK the action, do remain inslr-uments binding only on States; the States concerned are the only entities which signed those insti-uments, and thereafter, either ratified them or declared allegiance to !hem. Such instrument~ cannot therefore, by definition, be invoked against any other enlities than the States concerned, for they shalt not he binding on those other entities. MARlli MOLMOU & 11 4 OTHERS V REPURT. IC OF GUINEA. JUDG MENT NO. ECW!CCJiJUD/16116 PAGE 7. 77. The Court was more comc1se on this matter when it opined, ,;in international law, the party to be joined in a suit is the State of' NiKeria which is a sovereign State and the signato,y ()j' ECOWAS Treaty. " MOUKHI AR IBR.. I\. JIIM V. GOVER>tv!ENT OF JTGAWA STATE & 2 ORS ECW/CCJ/JUD/12/14 ~ PAGE 34. 78.\Vhile the Court is much persuaded by its previous jurisprudence, it will be remiss if it does not address the forceful argument of counsel to the Applicant to the effect that mere reference or the Application to the A fi-ican Charter and the various violation of human rights alleged therein clothes it with international character and thus justifies the assumption of jurisdiction by the Court In this wise his spirited effort is noted in trying lo find a correlation and convergence bet.ween their domestic dispute ,vhich is premised on intimidation, physical abuse, to1ture, deprivation of property by her husband, and the provisions of the African Charter in Articles 4, 5, 6 & 12 on the right to Ii fe, right to dignity freedom or movement, personal liberty. \Vhi le the subject matter disputes alleged by the Applicant may find a seat within an Jntcn1ational Treaty regime - the African Charter- its international character is not solely secured thereof. A claim for reparation must be established agai nsL the entity with the international obligation to implement and a fortiori redress the alleged violations. The Court hastens to state that the nah1re and circumstances of the instant case are clearly not wi thin the purview of the CoUI~'s jurisdiction as an Inte1national Court despite allegation of violations o r numerous human rights enshrined in the African Charter. 79. Consequenlly, the Court holds that it lacks jurisdicLion to entertain the application. iii. On whether the 3rd Respondent being an individual is a proper party 80. The jurisdiction of the Court to adjudicate over a complaint of human rights violation agains L the Jrd Respondent ought to be challenged in view of the fact that he is an individua l. l n that wise there is need for the Court to determ ine whether it has competence to preside over an application alleging Lhe violation of human rights lodged by an individ ual against another indiv idual. Ordinarily, the Jrd Respondent should have raised this issue as a Preliminary Objection in the appropri ate /.i)rm in accordance w ith the Ru les of Court, but he merely mentioned it as a passing observation in one sentence in paragraph 64 of his defence as fo llows: "This Court lacks jurisdiction to determine a dispute henveen two ordinary individuals. " 81. ln view of the fact that this is a matter that touches on the jurisdiction of the Court and for which it must address ahead of its analysis on the merits stage of the case, the Court will now take up the issue to detenninc whether jurisdiction is conferred on it under this circumstance. 82. The claim of the Applicant is that since human rights violations have been alleged in her Application for that reason, the Coutt ought to exercise jurisdiction and be seized of it. The Court agrees with the Applicant only to the extent that it has a human rights mandate. 83. Jndeed Article 9(4) of the Supplementary Protocol provides that, "The Court has jurisdiction to determine cases of'violation of human rights that occur in any lvlember State. " The Court in interpreting this Article has held that, Where the facts raised the issues ofviol.ations of human rights that occur in any member state a:id the complaint is by an individual and pursuant to Alticles 9 ( 4) and l O ( d) of the Supplementary Protocol, Article 4(g) of the Revised Treaty ofECO\VAS, A1ticle 5 of the African Chaiter or any of the provisions of the African Charter on Buman and Peoples Rights relating to the rights of the peopJc co!Jcctively and individually and other international human rights instruments assented to by the Nlember States of ECO\VAS with no pending litigation in any international court, this Court would assume jurisdiction. MAJMUNA /\81)1. J J. MUMIJ\l V. FEDERAL RF. P. OF NI GERI/\ & 2 ORS F. CW!CCJ/JUD/ 14i l4 @ PAGE 10. 84. \. Vhile recogn1zmg its subject matter jurisdiction over human rights violations nonetheless, a party seeking relief for violation of human rights must establish same against a proper party, which in this case is a Member State of the Comn1unity as provided for in Article 2(2) of the Revised Treaty, which provides '"1ne members of the Community, hereinafier referred to as "the lvlember States," shall be the States that ratify this Treaty." The Court in elaboration of th is point held as fo llows: " ... ECOfVAS 1\1ember States as contracting parties of the ECO WAS Communily law, or as guarantors for the implementation of the human rights recognized in the Revised Treaty of ECOW4S, are obliged to subscribe lo 1hese rights, and may in that regard be sued before the principal legal organ of ECOfiVAS, i.e. the Community Court ofJustice. Consequently, an individual may bring a proceeding against a };[ember Stale of the Community, before the Community Court of Justice. See NATIONAL COOROrNA TTON OF DEPARTMENT OELEGATES OF COCOA corFEE SECTOR (CNDD) V. REPUBLIC OF COTE O'IVOJRE (2004-2009) CCJELR, PAGE 323, PARAGRAPH 34. 85. The Court made a crisp clarification when it held as follows: "Only States that are contracting parties to the ECOWAS Revised Treaty and to the AfNcan Charter on Human and Peoples' Rights and other similar Human Rights Treaties can be sued before it,Ji.>r alleged viola/ion cf human rights occurring in their territory." See TIIE REGISTERED TRUSTEES OF THE SOClO-ECOl\OMIC RIGHTS & ACCOCNTABILITY PROJECT (SERAP} & IO ORS V. THE FF. DERAL REPUBLIC OF NIGERIA & ORS ECW/CCJ/J UD/16/ 14, PAGE 22-23. 86. In the instant case, the Applicant did not lodge a complaint against a Member State as envisioned under Article 9(4); rather she is seeking relief against her husband- an individual violating her human rights. 87. The Cou1t observes that due to the broad conslTuction of Article 9( 4) of the Supplementary Protocol, a cursory reading of the provision gives an impression that the Court is open to exercising its jurisdiction over every case of violations of human rights brought before it by all categories of persons. However the Court made a holistic clarification of this thorny issue when it held that; "A.first look at Article 9(4) may lead to the assumption that since no delimitation is done by the statute, any case of human right violation that occurs within any ECOWAS iv/ember State, no matter who is the perpetrator of the alleged violation . .falls under the jurisdiction q/1his Court. Assuming that such interpretation is correct, as suggested by the Plaintiff individuals can be sued before this Court.for alleged violation of human rights. But, given that almost every dispute involving individuals can be related to human rights, the conclusion is that all those disputes, fi·om small claims between neighbours on the frin1;es of their properties, through disputes between employees and employers on the amount of wages ... ending in the dispUle between spouses on issues like child custody and so on and so.forth, would fall under thejurisdiction of the ECOfVAS Community Court of Justice . . . . . The result of such reading could not be most clear: the mere allega1ion ofhuman rig/1/s ·1iolation by any individual against another individual would he enough to lead the Community Court ofjustice to replace the role of dome. Hie courts which would become absolutely redundant. ln other words the Community Court ofJustice would metamorphose itselffi·om an imernationaljurisdiction into a domestic one. oven-vhelmed by a.flood <if all kinds of dis pules coming from all !\If.ember States . ... Prom what has been said, the conclusion to be drawn is thatjhr the dispute between individuals on al !eged violation of human righ1s as enshrined in the African Charter on Human and Peoples ' Rights, the natural and proper venue bejhre which the case may be pleaded is the domestic Court ofState party where the violation occurred. It is only when at !he national l<!'1el !hat there is no appropriate and effective forum/hr seeking redress against individuals. 1hal the victim of such l!/fences may bring c.n action before an international Court, not against the individual, rather against the signntory State for its fitilure to ensure the proteclion and respect.for the rights allegedly violated. " PETER DA YID VS. AMBASSADOR RALPH UWECHUE (S L, PRA) '."i13 PARAGRAPH 36.37 & 46. See also, IlANS CAPEHART \\1LLIAMS SR & IOR V. REPUBLIC OF LIBERIA & 4 ORS (SUPRA), where the Court held that, "MatLer.1· relating to violations of human rights between individuals belong to the National or domestic courls ol A1ember States. Ii is only a klember State under this arrangement thai can be sued as ~ Defendant. Individual.~ of any ca1egory or creed are not recognised as Defendants in a human rights action hejcJre the court. ·· 88. Clearly from the above, Article 9(4) of the Supplementary Protocol admits no action between individuals except Article 1 O(g) where the parties have opted to submit to the jurisdiction of the Court for the settlement of any dispute arising out of an agreement. 89. In the light of the above analysis, the Court finds that the 3"1 Respondent is not a proper party in the instant Application and same is dismissed. Vlll. COSTS 90. Article 66 (I) of the Rules of Court provides, "A decision as to costs shall be given in the .final judgment or in the order, which closes the proceedings. " 91. The Court notes that none of the Parties to this Application made an application for costs of the proceedings. Consequently, in line with Article 66(11) of the Rules, which provides that "if costs are not claimed, the parties shall bear !heir own costs", the Coutt decides that each party shall bear their own costs. I}J IX. OPERATIVE CLAUSE for the reasons stated above the Court sitting in public after hearing both paities: As to jurisdiction: 1. Declares that it lacks jurisdiction to hear this Appl ication on the grounds that the I si, 2nd , and 3rd Respondents are not proper patties before the Court. 11. Dismisses the Application for lack of jurisdiction. On Costs 111. Order the Pa1ties to bear their ow:i costs. Hon. Justice Gberi-Be OUATTARA Hon, Justice Dupe ATOK1 Hon. Justice Januaria T. Silva Moreira COSTA Mr. Tony ANENE-f\-1ATDOH Chief Registrar --- Done in Abuja, this 10th day of tvlarch 2021 in English and translated into French and Portuguese. :rn