➥ CASE SUMMARY OF:
Chief Frank Ukor v Rachad Awodioke Laleye (2005)
by “PipAr” B.C. Chima
ECOWAS Court – ECW/CCJ/APP/01/04
➥ JUDGEMENT DELIVERED ON:
Friday May 27, 2005
➥ AREA(S) OF LAW
Retrospective – supplementary protocol.
➥ NOTABLE DICTA
⦿ THE REVISED TREATY MAY BE CALLED THE CONSTITUTION OF ECOWAS
“21. The Revised Treaty of 1993 is the supreme law of ECOWAS, and it may be called its Constitution. By Article 89 of the Revised Treaty, Protocols made pursuant thereto shall form an integral patt thereof.”
⦿ DISTINCTION BETWEEN SUBSTANTIVE & PROCEDURAL LAW
“24, Mr, Onuora rightly set out the distinction between substantive and procedural laws when he said that ‘as a general rule, laws which fix duties, establish rights and responsibilities among and for persons natural or otherwise are substantive laws in character while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a Court are procedural law.’”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice H. N. Donli – Presiding.
Hon. Justice S. D. Sidibe
Hon. Justice Awa Daboya Nana
Hon. Justice A. A. Benin
Hon. Justice Aminata Malla
⦿ FOR THE APPLICANT
Mr. Wilson O. Esangbedo.
⦿ FOR THE RESPONDENT
Mr. Anthony Osecloka Onuora.
➥ CASE HISTORY
The plaintiff, Chief Frank Ukor is a citizen of Nigeria and a businessman resident in Lagos. The defendant is a citizen of the Republic of Benin, and a Clearing and Forwarding Agent resident in Porto Novo. The Intervener-Applicant, Chief Josephat Iheangichukwu Allinor is also a citizen of the Republic of Nigeria, and a businessman resident in Lagos. Thus all the parties are Community citizens, that is citizens of Member States of the Economic Community of West African States (ECOWAS).
The plaintiff claims to have engaged the services of the defendant to take delivery of certain items he had imported. He claims further that the defendant did not meet his obligations; He claims also that the defendant took an action in a Cotonou local court in Benin Republic which ordered the seizure of the goods. The plaintiff therefore complained about the violation to his fundamental human rights to free movement of goods, inter alia.
The Intervener-Applicant applied to be allowed to join the proceedings on the main ground that he is in fact the owner of the goods in question and that he entrusted the plaintiff as an agent with the clearing of the goods from the Port of Cotonou. The Intervener requires damages for the losses he has incurred.
➥ ISSUE(S) & RESOLUTION
I. Whether the supplementary protocol should be retrospective?
RULING: AGAINST APPLICANT.
“20. Counsel submitted that the intention of ECOWAS was to make the Supplementary Protocol have retrospective effect. Rather unfortunate to recall, Counsel did not refer to even a single word in the entire Supplementary Protocol from which the remotest implication could be made that it should have retrospective effect. Counsel did not say in what way it was procedural. From Counsels’ own submission, the Supplementary Protocol is a law that creates rights, albeit the right of access to the Court to individuals, thus it is substantive law. By implication too, since there is nothing on the face of the Supplementary Protocol that it should be retrospective, it should not be given that effect.”
II. Whether the intervener is out of time?
RULING: AGAINST INTERVENER.
“27. Article 13(6) of the Court’s Rules stipulates that ‘Notice shall be given in the Official Journal of the Community of the date of registration of an application initiating proceedings’. 28. And Article 89(1) of the Rules of Court requires an application for intervention to be made within six weeks from the date of publication of the notice referred to in Article 13(6). 29. The plaintiff’s application was filed on 19 April 2004 and was published in the May 2004 edition of the Official Journal. It is thus clear that the application for intervention that was filed on 30 November 2004 was out of time.”
“32. In the form, the Court adjudges and declares the main application of Chief Frank Ukor inadmissible for lack of merit. 33. Adjudges and declares the voluntary application for intervention from J. I. Alinnor as inadmissible, for lack of merit and non-observance of time-limit.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ WHAT ARE RETROACTIVE LAWS?
✓ 18. In the case of Barbieri vs Morris, Mo; 315 S.W. 2d 711 at page 714, it was said that retroactive laws are generally defined from a legal viewpoint as those which take away or impair vested rights acquired under existing laws, create new obligations, impose a new duty or attach a new disability in respect to the transactions ot considerations already past. In other words it is a law that is intended to act on things, which are past.
✓ 19. Another important definition is to be found in the case of Bear Val Mutual Water Co. vs. San Bernardino County, 242 Cal. App. 2d, 68, where it was stated that a retrospective law is one which looks backward or contemplates the past, one which is made to affect acts or facts occurring, or rights accruing, before it came into force. Every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. One which relates back to a previous transaction and gives it a different legal effect from that which it had under the law when it occurred.
➥ REFERENCED (OTHERS)