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George S. Boley v Republic of Liberia & Ors. (2019) – ECOWAS

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➥ CASE SUMMARY OF:
Dr. George S. Boley v Republic of Liberia & Ors. (2019) – ECOWAS

by “PipAr” B.C. Chima

➥ COURT:
ECOWAS – ECW/CCJ/JUD/24/19

➥ JUDGEMENT DELIVERED ON:
Friday, the 28th Day Of June 2019

➥ AREA(S) OF LAW
Right to pension.
Right to life.
Right to work.

➥ NOTABLE DICTA
⦿ ONLY PARTIES TO TREATISES CAN BE BOUND AND HELD RESPONSIBLE
Para. 24: “Before proceeding to analyze the facts of this case, the Court must first address the capacity of the 2nd to 4th Respondents who are the agents of the 1 st Respondent – The Republic of Liberia. It is trite law that only parties to treaties can be bound and held responsible for their implementation. This Court has held on several occasions that agents of member state of the ECOWAS treaty are not proper persons capable of being sued before this Court for the violation of the said treaty or other relevant international Human rights instruments signed by member state of the ECOWAS.”

⦿ MERE ALLEGATION OF HUMAN RIGHTS VIOLATION TRIGGERS THE COURT JURISDICTION
Para. 27: “This Court has held in many of its flourishing jurisprudence that mere allegation of violation of human rights is sufficient to trigger the jurisdiction of this Court and the Court will assume jurisdiction without necessarily examining the veracity of the allegation. In Kareem Meissa Wade v. Republic of Senegal, ECW/CCJ/JUD/19/13, at pg. 259 Para. 95 (3), this court held that: “Nevertheless, that simply invoking human rights violation in a case suffices to establish the jurisdiction of the Court over that case.” Similarly, In BAKARE SARRE V MALI (2011) CCJELR pg. 57, the court stressed that: “Once human rights violations which involves international or community obligations of a member state is alleged, it will exercise its jurisdiction over the case.” This position is further supported by the decision of the Court in SERAP V. FRN & 4 ORS, (2014) ECW/CCJ/JUD/16/14 where this court held that: “the mere allegation that there has been a violation of human rights in the territory of a member state is sufficient prima facie to justify the jurisdiction of this court on the dispute, surely without any prejudice to the substance and merits of the complaint which has to be determined only after the parties have been given the opportunity to present their case, with full guarantees of fair trial.” See also the case of His Excellency Vice-President Alhaji Samuel Sam-Sumana v. Republic of Sierra Leone.-SUIT NO: ECW/CCJ/APP/38/16 and JUD NO: ECW/CCJ/JUD/19/17 (At page 14 of the judgment) and Mamadou Tandja (2010) CCJELR pg. 109 & Bakare Sarre & 28 Ors v. Mali (2011) (CCJELR) pg. 57.”

⦿ A GUARANTEED RIGHT COULD BE DEROGATED FROM
Para. 44: “The Court is not unmindful of the fact that a right might be guaranteed but it can be derogated from if provided for by law, and if necessary; in a democratic society.”

⦿ ALLEGATION OF BREACH OF RIGHT TO LIFE DOES NOT MEAN ACTUAL LOSS OF LIFE
Para. 53: “The rights to life, health and dignity are intertwined such that a violation of one can lead to the violation of the other. It follows that the enjoyment of a healthy life is dependent on the ability to afford good medical services which in turn is dependent on the financial security sufficient for maintenance of good health. Payment of pension implicates the ability of pensioners to enjoy these guarantees. The allegation of the violation of the right to life does not necessarily entail the actual loss of life or merely physical act of breathing, neither does it connote mere animal existence or continued drudgery through life. It has a wider meaning which includes right to live with human dignity, right to livelihood, right to health and many more. Consequently, the refusal to pay retirement benefits can occasion the violation of the right to health and thus a violation of the right to life. Of course the dignity of a person is implicated if due to lack of means traceable to denial of pension, the person becomes a relic of the society falling from his/her ordinary standard in life with the likelihood of becoming a beggar.”

⦿ HE WHO ALLEGES MUST PROVE
Para. 61: “It is trite law that he who alleges bears the burden of making out a prima facie case in support of his averments, the court in its consideration reiterated the cardinal principle of law that “he who alleges must prove”. Therefore, where a party asserts 26 a fact, he must produce evidence to substantiate the claim. The Applicant has not been able to establish that he was treated differently from other members in similar situation with him. In the absence of evidence to support a different treatment in similar situations, the Applicant’s claim of violation of equality before the law and freedom from discrimination is hereby dismissed.”

⦿ RATIONALE BEHIND LEGITIMATE EXPECTATION
Para. 62: “The rationale behind the doctrine of legitimate expectation is the need to prevent administrative authorities from exercising their discretionary powers so as to defeat legitimate expectations of individuals, which have been engineered by the prior conduct of those administrative authorities. Thus, the doctrine strives to make sure that administrative authorities are bound by their undertaking. In the case of ČAKAREVIĆ V. CROATIA (Application no. 48921/13) 26 April 2018, the ECHR Court held that, as a rule, a legitimate expectation of being able to continue having peaceful enjoyment of a possession must have a ‘sufficient basis in national law’.”

⦿ BURDEN TO PROVIDE DOCUMENT IS IN THE PARTY WHO IS IN POSSESSION OF THE DOCUMENT
Para. 68: “It is trite law that when a document is in the custody of the adverse party, the burden of proof of same shifts from the claimant to the custodian of the document. It is common knowledge that information about pension benefits especially the matrix of calculation is domiciled with the employer. The employee, more often than not upon retirement is presented with the total entitlement due same having been calculated by the employer. Thus when the records and the metric of calculation are in the custody of the employer, as in this instant case, the Respondent, the onus lies on them to provide.”

Available:  David Inneh v. Iguma Aruegbon (1952)

➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Edward Amoako Asante
Hon. Justice Gberi-Be Quattara
Hon. Justice Dupe ATOKI

➥ APPEARANCES
⦿ FOR THE CLAIMANT
⦿ FOR THE RESPONDENT

➥ CASE HISTORY
The Applicant averred that after the Civil war in Liberia, following various negotiations and agreements which culminated into the drafting of the Abuja peace agreement on August 19th 1995 (Abuja Accord), a Transitional Council was created to forestall peace and oversee the process of enabling the establishment of a democratically elected government within one year. Applicant continued that he was a Vice Chairman in the Transitional Council with the mandate of a 12 month tenure but was however allowed by the provision of Abuja agreement to resign three months before election, if they wish to contest.

The Applicant stated that he resigned to contest election and thereafter nominated another candidate to take his place in the council pursuant to the provision of the Abuja accord.
That after the newly democratically elected government came into office, he has written several letters to the Respondent who has refused till date to respond nor pay him his retirement entitlement. He contended that nevertheless his diplomatic passport which is part of his retirement benefit is being continually renewed by the Respondent as at when due.

The Applicant aver that the refusal to pay his retirement benefit affected his family life to the extent he became incapable of supporting his family leading to a divorce in his marriage and the deterioration of his health.

The Respondent submitted that the consequences of resignation from the Government to contest the 1997 elections stripped Applicant of the qualification as a retiree of the government of Liberia and therefore not entitled to any retirement benefit or any other benefits enumerated under The Retirement Benefit Act because he resigned his post and did not complete his tenure.

➥ ISSUE(S) & RESOLUTION

I. Whether the application is admissible by the court?

RULING: IN CLAIMANT’S FAVOUR.
Para. 28: “Based on the above jurisprudence, and being satisfied that the case is premised on the allegation of violation of human rights, the Court holds that the case is admissible.”
.
.
II. Whether the applicant having resigned can still claim the status of a “former” member of the transitional council?

RULING: IN CLAIMANT’S FAVOUR.
Para. 35: “It is the opinion of the Court that a disengagement whether voluntary or otherwise from office can be classified as resignation or retirement and to the extent that it was not an impeachment or based on infraction of law amounts to retirement within the law. In the instant case, the Applicant falls within the voluntary act of disengagement from service and therefore is properly regarded as a retiree albeit voluntary.”

Para. 37: “The Act did not specify whether resignation from office automatically ousts the official from being regarded as a former member. A close look at the Act shows that other than the title where the word “Retirement” was used once, the word “former” appears in three places in the body of the Act which is emphatic enough to explain the purposive interpretation of the Act that retirement benefits are meant for former members of the Transitional Council of Liberia. Furthermore a close look at the provision of Article 1(1) of the Act shows that payment of honorarium is merely based, “upon leaving office”. There is no stipulated mode of leaving office in the Act to qualify one for the stipulated benefits. Black’s law dictionary defines “leave” simply as departure or act of going away. The wordings of Act is clear and unambiguous and as such no extraneous meaning should be imported into to it.”

Para. 39: “The Court is of the opinion that it will be disingenuous in the light of the provisions of above Accord to hold that the Act contemplates a full completion of tenure to qualify for the benefits therein, in essence making resignation punitive. It is clear from the above that the resignation of member from the Council of State was anticipated and approved and the Abuja accord is a necessary provision to enable a smooth/seamless continuation of the transition process. In fact it is the opinion of the court that this gesture was geared towards a realisation of democratic governance in enabling participation in a democratic process. Had the Applicant resigned for purposes in variance with the Act, the court will all probability have come to a different conclusion. Therefore resignation cannot rightfully be concluded to waive the benefits provided for former members of the transition council and in the instant case the Applicant.”

Para. 43: “In all, based on the above analysis and the established practices from other nations, the Court holds that Applicant’s resignation is within the contemplation of the law and he therefore remains a former member of the Transitional Council.”
.
.
III. Whether if issue 2 above is resolved in the affirmative, the applicant is entitled to his claims?

RULING: SUCCEEDED, IN PART.
✓ Right to life: dismissed.
Para. 53: “The rights to life, health and dignity are intertwined such that a violation of one can lead to the violation of the other. It follows that the enjoyment of a healthy life is dependent on the ability to afford good medical services which in turn is dependent on the financial security sufficient for maintenance of good health. Payment of pension implicates the ability of pensioners to enjoy these guarantees. The allegation of the violation of the right to life does not necessarily entail the actual loss of life or merely physical act of breathing, neither does it connote mere animal existence or continued drudgery through life. It has a wider meaning which includes right to live with human dignity, right to livelihood, right to health and many more. Consequently, the refusal to pay retirement benefits can occasion the violation of the right to health and thus a violation of the right to life. Of course the dignity of a person is implicated if due to lack of means traceable to denial of pension, the person becomes a relic of the society falling from his/her ordinary standard in life with the likelihood of becoming a beggar.”

Available:  Oladapo Olatunji & Ors. v Uber Technologies System Nigeria (2018) - NICN

Para. 56: “Having said that, the Applicant has the burden to proof that the denial of his entitlement under the act has rendered him incapable of living a life with dignity. The court has no evidence to support the fact that the Applicant is unable to afford the bare necessities, minimum and basic requirement to live a life worth living. Having not discharged this burden, the claim of violation of his rights to life, dignity and health does not avail him.”

✓ Right to property: upheld.
Para. 58: “The court notes that the combined reading of article 20 (a) of the 1986 Liberian Constitution and Article 14 of the ACHPR guarantees the right to property. Following from the analysis and the jurisprudence from different jurisdiction, the court reaffirms and holds that pension is property with attendant right to be protected in accordance with the law. While the court has held that pension is property to which a proprietary right can be claimed, it should however be noted that this right is not absolute as it can be derogated from in accordance with the law or when necessary in a democratic society. The Court, in its analysis of the instant case finds no specific provision of the law which entitles a denial of the Applicant’s pension and other entitlements. Even though the Respondent contended that based on the Applicant’s resignation as provided for in the Abuja Accord, he is precluded from claiming the rights under the Act, the Court has already ruled that the Abuja Accord which allows resignation before the end of the Applicant’s tenure does not constitute a bar to his entitlement. Additionally the Respondent has not justified the denial of the pension rights as necessary in a democratic society. The court has therefore come to the inevitable conclusion that the justification to deprive a right to property has not been substantiated. The denial of the Applicant’s pension and other retirement benefits therefore amounts to the violation of his right to property contrary to Articles 14 of the ACHPR and 20(a) of the Constitution of the Republic of Liberia and the court so holds.”

✓ Equality before the law and freedom from discrimination: dismissed.
Para. 60: “In the instant case, the case of the Applicant is that he has been discriminated against by the denial of his benefits whilst others were paid. The Respondent on the other hand stated that indeed two other members of the Council in persons of Charles Taylor and Alhaji G Koromah resigned to contest the presidential election and that none of them was paid any benefits under the Act. To succeed in a claim of discrimination, the Applicant must established that having regard to denial of the retirements benefits due to his resignation, other members who also resigned were nevertheless paid their entitlements. The Applicant while contesting otherwise annexed payment vouchers of several legislators who were not shown to have resigned to contest the election. In essence, the court has no record indicating payments made to other ranking members who resigned to contest the 1997 election.”

✓ violation of legitimate expectation: upheld.
Para. 63: “In the instant case, the Respondent argue that the Applicant did not complete his term in office because he resigned to contest an election and he is therefore not entitled to any pension regardless of the fact that there is no provision of the law to back up the argument. To deny the Applicant his legitimate expectation to pension after retirement without any provision of the law to substantiate such decision constitutes a violation of his human rights.” “Applying the above decisions which are quite persuasive, the court holds that the Applicant, placing reliance on the provision of The Retirement Pension Act that upon leaving the office as a Member of the Transitional Council, he will be entitled to receive all the benefits provided for as a former member of the Transitional Council in which he was a former Vice Chairman is a valid legitimate expectation which this court will protect. The Court therefore holds that the denial of the Applicants pension is a denial of his legitimate expectation.”

.
.
.
✓ DECISION:
“1. The Respondent to calculate and pay to the Applicant his entitlement from 1997-2017 in accordance with the provision The Retirement Benefits Act.

  1. The Respondent to calculate and pay to the Applicant as refund due to him for security and transport allowance based on the amount budgeted for same for other former members.
  2. The Respondent to immediately restore the pension and other retirement benefits due to the Applicant as former Vice Chairman from the date of this judgment in accordance with The Retirement Benefit Act.
  3. That the Respondent file a notice of compliance with above orders on or before 120 days from date of this judgement. 5. The Respondent to pay the Attorneys fees of $2,000 United States dollar as cost to the Applicant.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Article 9(4) of the 2005 Supplementary Protocol on the Court (A/SP.1/01/05).

➥ REFERENCED (CASE)
⦿ IT IS ONLY SIGNATORIES TO THE ECOWAS TREATY WHO CAN BE SUED BEFORE THE ECOWAS COURT
✓ In the case of JOHNNY KING & 10 Ors V. FEDERAL REPUBLIC OF NIGERIA & 9 Ors ECW/CCJ/RUL/06/19, the Court held that: “The Court has looked at the laws regarding its jurisprudence as well as precedents in this Court, and it is so clear that, it is only member states of ECOWAS who are signatories to the treaties can be brought before this Court for human rights violations and this Court has maintained that position in all its decisions.”
✓ In SERAP V. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & Ors ECW/CCJ/RUL/07/10, The Court confirms that: “In the context and legal framework of ECOWAS, the court stands by its current understanding that only member States and Community Institutions can be sued before it for alleged violation of human right as laid down in Peter David v. Ambassador Ralph Uwechue delivered on 11 th day of June 2010”.

Available:  Etim Moses Essien v. The Gambia (2007) - ECOWAS

⦿ IF A STATUTE IS PLAIN, THE DUTY OF INTERPRETATION DOES NOT ARISE
In CAMINETTI V. UNITED STATES, 242 U.S. 470 (1917), the Court while applying the Literal rule of interpretation in its reasoning held thus: “It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain… the sole function of the courts is to enforce it according to its terms.” And if a statute’s language is plain and clear, the Court further warned that “the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”

⦿ PENSION IS PROPERTY
✓ Registered Trustees of Association of Former Telecom Employees of Nigeria &17,102 Ors. V. Federal Republic of Nigeria & Ors. ECW/CCJ/JUD/20/19 it held as follows. “In light of the above, the Court holds the view that pension is property which can be vested on an individual the denial of which therefore constitutes a violations of Right to property.”
✓ The United States Claim Tribunal in AMOCO INTERNATIONAL FINANCE CORPORATION V. IRAN, Award No 310-56-3 (14 July 1987), 15 Iran-US C.T.R. 189- 289, held that: “Under the Protocol 1 of the European Convention on Human Rights, the concept of property is very broadly defined by reference to all the proprietary interests of an individual. It covers a range of economic interests: “movable or immovable property, tangible and intangible interests, such as shares, patents, an arbitration award, the entitlement to a pension, a landlord’s entitlement to rent, the economic interests connected with the running of a business and the right to exercise a profession…” (Protocol I of the ECHR is pari material with Article 14 of the ACHPR).
✓ In further support of the above opinion the ECHR has held in the case of BÉLÁNÉ NAGY v. HUNGARY (Application no.53080/13) JUDGMENT STRASBOURG 10 February 2015 @ 36 that: “Article 1 of Protocol No. 1 places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit whether conditional or not on the prior payment of contributions that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements.”

⦿ THE DOCTRINE OF EQUALITY BEFORE THE LAW
In BADINI SALFO V THE REPUBLIC OF BURKINA FASO JUD NO: ECW/CCJ/JUD/13/12, the Court while relying in its judgment in CNDD v. COTE D’ IVOIRE (2009) Para 55, and PROF. ETIM MOSES v. REP OF GAMBIA, (2007) Para 31, held that: “Equality before the law presupposes that equal treatment is accorded people finding themselves in similar situations. Thus, examining the allegation of the violation of the principle of equality requires that, at least two similar legal situations be put side by side as to compare and find out whether an ill treatment was concretely meted out to either one or both of them”.

⦿ DOCTRINE OF LEGITIMATE EXPECTATION
Lord Fraser of Tullybelton in ATTORNEY-GENERAL OF HONG KONG V. NG YUEN SHIU (1983) 2 A.C. 629 said that, “When a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty”.

⦿ BURDEN TO PROVIDE RECORDS OF PENSION IS ON GOVERNMENT
In the case of Registered Trustees of Association of Former Telecom Employees of Nigeria &17,102 Ors. V. Federal Republic of Nigeria & Ors; ECW/CCJ/JUD/20/19, when this court held that: “It follows therefore that once the claimant makes out a prima facie case of entitlement to pension, by proof of employment but lacks access to the key information needed to substantiate his claim same being in the control of Respondent, such claim cannot fail due to being unsubstantiated. It is a recognized fact that salary records and computations matrix are in the normal cause of events in the custody and preserve of the employer in this case the Respondent. The burden to provide records of the pension entitlement of the Applicant having shifted to the Respondent, the Applicants are exonerated from proving their entitlement.”

➥ REFERENCED (OTHERS)
Black’s Law Dictionary (10 th Edition) Bryan A. Garner defines retirement as: “Termination of one’s own employment or career, especially upon reaching a certain age or for health reasons; retirement may be voluntary or involuntary.”

The Black’s Law Dictionary, Ninth Edition defines pension as: “A fixed sum regularly paid to a person or to the person’s beneficiaries by an employer as a retirement benefit.”

⦿ RIGHT TO STATE PENSION IS A BASIC HUMAN RIGHTS
The obligation of State Parties to provide social security including pension as envisaged in Article 25 of the UDHR has been well articulated as follows by a legal expert; Z. Vorslava in his book titled: Legal Aspects of Right for a Pension as a Human Rights; “which basically means also a right to receive states social security, including social risk situations. The right to social security is a basic human right (which pertains to the social, economic and cultural rights – the second generation of human rights). Thus, the right to a state pension is among the basic human rights and their implementation is one of the fundamental principles of the judicial state. The right to social security is closely linked to the right to life, liberty and security of a person, provided in the Article 3 of United Nations Universal Declaration of Human Rights. Restriction of the social rights, including restriction of rights to the pension, may indirectly affect a persons right to life.”

End

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