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Nosa Ehanire Osaghae v Nigeria (2017) – ECOWAS

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➥ CASE SUMMARY OF:
Nosa Ehanire Osaghae v Nigeria (2017) – ECOWAS

by “PipAr” B.C. Chima

➥ COURT:
ECOWAS – ECW/CCJ/JUD/03/17

➥ JUDGEMENT DELIVERED ON:
10th day of October, 2017

➥ AREA(S) OF LAW
Violation of rights of Niger Delta region

➥ NOTABLE DICTA
⦿ JURISDICTION IS DETERMINED FROM THE FACTS PRESENTED BY THE PLAINTIFF
Para. 12: “The plaintiffs failed to address the issues raised by the defendant in the preliminary objection. This court in its inherent jurisdiction to do justice at all times will however proceed to analyze the issues raised in line with the facts presented by the plaintiffs in the initiating application. This is more so as jurisdiction is determined from the facts presented in a Plaintiffs application and not from the defence.”

⦿ PETITION ON BEHALF OF VICTIMS MUST BE SUBMITTED WITH THEIR CONSENT
Para 16: “Where a petition is submitted on behalf of a victim, it must be with their consent, unless submitting it without their consent can be justified. Such justification would be the case of serious or massive violations pursuant to article 58 of the African Charter or a documented and well-reasoned problem for the victims in doing so themselves.”

⦿ INDIVIDUAL PLAINTIFF MUST SHOW MANDATE TO ACT ON BEHALF OF PEOPLE; NGO HAS WIDE ACCESS
Para. 16: “For the Plaintiffs to access the court for and on behalf of the people of Niger Delta, they need the mandate upon which they act and when questioned must establish consent of the people or a justification for acting without such consent. This is different where the Application is brought by an NGO. While the NGO’s enjoy a wide range of access to Court on behalf of individuals, the individuals on the other hand have access mainly in their personal capacity on alleged human rights violations and approaching the Court in a representative capacity requires authorization.”

⦿ VICTIMS MUST BE IDENTIFIABLE
Para. 18: “For an application of this nature to succeed, the victims must be identifiable, and the representatives must present a mandate from the said victims authorizing them to act on their behalf. Where it is impracticable to obtain a mandate, the representatives must give reasons why it is so impracticable.”

⦿ MATTER ALREADY ADJUDICATED UPON IS RES JUDICATA
Para. 19: “The doctrine of res judicata simply states that once a matter/cause has been finally determined, it is not open to either party to re-open or re-litigate that same matter. A matter is said to be res judicata if it has already been adjudicated upon by a competent Court. This prevents it from being pursued further by the same parties. Res judicata precludes the continued litigation of same issues between the same parties. The matter cannot be raised again either in the same Court or in a different Court. In other words, for a plea of res judicata to be sustained, both the subject matter and parties must be the same.”

⦿ CAUSE OF ACTION IS SET OF FACTS WHICH JUSTIFIES PLAINTIFF TO SUE
Para. 21: “A cause of action is a set of facts sufficient to justify a right to sue. It must contain a clear and concise statement of the material facts upon which the pleader relies for his claim with sufficient particularity to enable the opposite party to reply thereto. The term “cause of action” was defined in McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 at 23 as “…”every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each 22 fact, but every fact which is necessary to be proved.” See also Mousa Leo Keita (2004-2009) CCJELR pg. 75 See also Afolayan V. Oba Ogunrinde & 3 ORS, (1990), 1 NWLR, (Pt. 127) 369 @ 371. SCNJ 62. Where Karibi-Whyte JSC stated that a cause of action means: ‘a) A cause of complaints; b) A civil right or obligation for the determination by a Court of law; c) A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine.’”

⦿ SELF-DETERMINATION IS THE RIGHT OF PEOPLE TO DETERMINE THEIR DESTINY
Para. 24: “Self-determination on its own denotes the legal right of a people to decide their own destiny in the international order. Under the United Nations Charter and the International Covenant on Civil and Political Rights, self-determination is protected as a right of “all peoples.” It refers to the rights of people indigenous to an area to determine their destiny. Indigenous peoples’ rights are collective rights. In other words, they are vested in indigenous persons that organize themselves as peoples. With the adoption of the UN Declaration on the right of indigenous people, the international community clearly affirms that indigenous peoples require recognition of their collective rights as peoples to enable them to enjoy human rights.”

Available:  Afrotec Technical Services (Nig) Ltd. v. MIA & SONS Limited & Anor (2002)

⦿ ACTIO POPULARIS – HE WHO CHALLENGES MUST PROOF
Para. 25: “Therefore, where a party asserts a fact, he must produce evidence to substantiate the claim. It is not sufficient simply to challenge a law or State policy or practice in the abstract (actio popularis) without demonstrating how the alleged victim is individually affected. The complaint must be sufficiently substantiated. See Aumeeruddy-Cziffra and Others v. Mauritius (Communication No. R.9/35) 9 April 1981 decided in the African Commission on Human and People’s Rights.”

➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Friday Chijioke Nwoke
Hon. Justice Yaya Boiro
Hon Justice Alioune Sall

➥ APPEARANCES
⦿ FOR THE PLAINTIFF
Solomon Omobudu Esq.

⦿ FOR THE RESPONDENT
Maimuna Lami Shiru (Mrs.)

➥ CASE HISTORY
The 1st Plaintiff who is from Edo State avers that he has suffered marginalization from the Defendant and its agents in the Niger Delta region. The 2 nd Plaintiff is from Delta state and claims to be a victim of injustice being perpetrated by crude oil exploration/mining companies arising from crude oil spills, gas flaring and environmental degradation. The 3 rd Plaintiff is from Edo State and avers that he is a victim of apparent destruction of communal fishing water in the Niger Delta region by oil companies. Lastly, the 4 th Plaintiff from Edo State claims to be a victim of 3 unlawful takeover of communal natural resources and environmental degradation. The Plaintiffs are suing for themselves and on behalf of the Niger Delta people of Nigeria.

The Plaintiffs claim that the core Niger Delta Region of Nigeria made up of 6 States in the South-South Geopolitical Zone namely: Edo, Delta, Bayelsa, Rivers, Akwa Ibom, and Cross River States are perpetually under serious environmental attack by the agents and companies purportedly holding Oil Mining Lease (OML) granted to them by the Defendant. That they have been faced with unprecedented degradation, destruction, poisoning, and pollution of the environment through crude oil spills and gas flaring thereby destroying their social and economic life. The spills have destroyed Farmlands and Rivers which is the only source of clean drinking water and also used for fishing.

In defence to the Plaintiffs Application, the Defendant denied each and every material allegation of fact contained in the Plaintiffs’ application and puts the Plaintiffs’ to the strictest proof of those facts.

➥ ISSUE(S) & RESOLUTION
I. Whether this application as conceived and constituted can be entertained by this court?

RULING: IN PLAINTIFF’s FAVOUR, in part.
a. On the Ratione Materiae
Para. 15: “The Court therefore looks to find out whether the human right violations as observed, constitute the main subject matter of the application and whether the pleas in law and evidence adduced if proven will establish such violations. The invocation of facts which fall in line with the subject matter is sufficient on its own to establish its competence on human right matters. Applying the above authorities in relation to the facts of this case, and in the absence of anything to the contrary, this matter falls within the ambit of the Court’s jurisdiction and the Plaintiffs who allege violation of their rights have the right to bring same for adjudication. The Defendant’s objection in this regard is therefore not tenable.”

a1. On ability to sue on behalf of Niger Delta people
Para. 16: “In Serap V. Federal Republic Of Nigeria, (2012) CCJELR unreported, where the Plaintiff, an NGO, filed the action on behalf of the People of Niger Delta, against the Federal Republic of Nigeria, the Defendants challenged the Plaintiffs locus on the grounds that the application was filed without the prior information, accord and interest of the people of Niger Delta and that Serap acts in its own name with no proof that it is acting on behalf of the People of Niger Delta, the Court held that the NGO known as SERAP has the locus standi to institute this action. Relating this to the instant case, it is important to distinguish the capacity upon which the parties act, i.e. as non-natural and natural persons. While in SERAP supra, the Plaintiff by virtue of its registration under the Laws of Nigeria is recognized to represent the People of Niger Delta without the need to produce any proof of authorization. The Plaintiffs in this case are natural persons claiming to appear on behalf of the People of Niger Delta without authorization. The proof of authorization in the case of natural persons acting on behalf of a group cannot be dispensed with. The Niger Delta is so vast that an action brought for and on behalf of the said people without authorization sounds questionable. The Plaintiffs have failed to attach a mandate if any, given to them to clear the air in this regard. Above all no proof that the Niger Delta Region is a “people” within the context of the right of self–determination. The term is merely a coinage for administrative purposes and that does not qualify them as a people to which the right of self-determination in international law can be claimed.”

Available:  Josiah Danjuma v Royal Salt Ltd. & Anor. (2020) - NICN

b. On Res Judicata
Para. 19 – 20: “In the instant case, the Defendant is challenging the admissibility of the suit on the grounds that part of the claims of the Plaintiffs have already been decided upon by this Court in the case of Serap V. FRN. (2012) CCJELR (unreported). A comparative analysis of the instant case and SERAP supra, shows that though the claims are similar in nature, the reliefs sought are not the same. Particularly, the parties in both suits are not the same. The rule on res judicata is clear and unambiguous and therefore not applicable in this case. An argument on res judicata can only be upheld if it is established that the case brought before the court is essentially the same as another which has been adjudicated upon by another competent Court. In other words, the parties are the same, the subject matter is same and had previously been litigated upon.”

Para. 20: “The Defendant has failed to establish that this case has been satisfactorily decided by a National Court. They have also failed to prove that the Application brought before the Court is essentially the same as that of SERAP i.e. in terms of the subject matter and parties. From the foregoing, the issue of res judicata does not apply to the instant case and therefore fails.”

c. On Pendency of suit before a Domestic Court
Para. 20 – 21: “Access is open to individuals on application for relief for violation of their human rights; the submission of Application for which shall: i) Not be anonymous; nor ii) Be made whilst the same matter has been instituted before another international Court for adjudication. This Court has repeatedly stated that the pendency of a case before a Domestic Court does not oust its jurisdiction to entertain a matter. As long as the matter is not before another International Court, this Court has the competence to entertain same.”
.
.
II. Whether the Plaintiffs have disclosed a reasonable cause of action?

RULING: IN PLAINTIFF’S FAVOUR.
Para. 22: “The crux of this application is the plaintiffs’ allegation of crude oil spills, gas flaring, environmental degradation, destruction of communal fishing water and unlawful takeover of their communal natural resources by the Defendants. The above are issues and elements suggestive of rights violation. The object of pleading is to ascertain with precision the issue between the parties. The facts alleged by the plaintiffs as summarized above are precise and discloses a reasonable cause of action which if established will entitle them to the reliefs sought. The argument of the Defendant on this ground therefore fails.”
.
.
III. Whether from the facts presented, the Plaintiffs have led sufficient evidence to substantiate their claims against the Defendants?

RULING: IN RESPONDENT’S FAVOUR.
Para. 26: “The Plaintiffs failed to adduce evidence to support their allegation. They did not attach any photograph, or expert report to show the extent of the said degradation and its negative impact on them personally.”

Para. 27: “As to the award of oil mining leases, the Defendants denied the Plaintiffs allegation and states that the award are done in compliance with the due process in its National Laws. The Plaintiff failed to lead any evidence or establish with specificity that any of them applied for the said mining license and was denied on the sole reason that he is from the Niger Delta. They thus failed to discharge the evidential burden of proof necessary to establish their allegation. Above all the Defendants acted within the purview of its Domestic Law which this Court lacks competence to question same in situation that its provisions have the effect of violating the rights of the Plaintiffs.”

Para. 28 – 29: “Assuming that the Plaintiffs have the right to challenge the award of oil mining licenses, they have failed to sufficiently provide evidence to support the facts they bring forth or to buttress the discrimination they claim to have been victims of. They have failed to prove that they actually participated in a bid and were disqualified, neither did they attach any documents to show that they complied with the 29 requirements for the grant of mining license and were so disqualified on the sole ground that they are from the Niger Delta.”
.
.
.
✓ DECISION:
“AS TO ADMISSIBILITY: DECLARES: That the suit is admissible with regard to the personal rights of the Plaintiffs alleged to have been violated; and all preliminary objections to the suit be dismissed and is hereby dismissed.
AS TO THE MERITS: Declares that Plaintiffs case is unmeritorious and should be dismissed in its entirety on the basis of the reasons adduced above.
AS TO COSTS: Parties should bear their own costs.”

Available:  Mobil Oil (Nigeria) Limited v. J. M. Johnson (1961)

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)
⦿ MERE ALLEGATION OF HUMAN RIGHTS VIOLATION SATISFIES RATIONE MATERIAE
✓ Para. 14: In Serap V. Federal Republic Of Nigeria & 4 ors, (2014) ECW/CCJ/JUD/16/14 (unreported), the 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.

✓ Para 15: Similarly in El Hadji Aboubacar Vs. BCEAO & Rep. of Niger (2011) CCJELR (unreported) pg. 8, Para 25, the Court found that for an application to be admissible in matters of human rights, the mere citing of the facts connected with such description suffices to confer competence on it.

⦿ INITIATING APPLICATION DETERMINES COURT’S JURISDICTION
In Bakary Sarre & 28 Ors vs. Senegal (2011) (unreported) Pg. 11, Para. 25, the Court held that its competence to adjudicate in a given case depends not only on its texts, but also on the substance of the Initiating Application. The Court accords every attention to the claims made by the Applicants, the pleas in law invoked, and in an instance where human right violation is alleged, the Court equally carefully considers how the parties present such allegations.

⦿ TO CHALLENGE A LAW, AN INDIVIDUAL MUST SHOW THAT HE IS DIRECTLY AFFECTED
Para. 16: In Aumeeruddy-Cziffra and Others v. Mauritius (Communication No. R.9/35) 9 April 1981, the United Nations Human Rights Committee pointed out that to bring an Application before it, an individual must be actually affected ‘by the act complained of and that no individual can in the abstract, by way of actio popularis, challenge a law or practice claimed to be contrary to the Covenant’.

⦿ RES JUDICATA WILL SUCCEED WHEN IT IS SHOWN THAT THE MATTER BROUGHT IS SAME AS THAT ALREADY DECIDED
Para. 20: In Aliyu Tasheku V. FRN, ECW/CCJ/RUL/12/12, (unreported), The Court was of the view that the argument concerning res judicata can only succeed when it is established that the Application brought before it is essentially the same as another one already satisfactorily decided upon before a competent Domestic Court or an International Tribunal.

⦿ NATIONAL COURTS DO NOT QUALIFY AS INTERNATIONAL COURTS
In Valentine Ayika V. Republic Of Liberia (2011) CCJELR, pg. 237, para 13, the Court held that the Supreme Court of Liberia and for that matter any other Court in Member States does not qualify as international court within the meaning of Article 10 (d)(ii) of the Protocol as amended.

⦿ ARTICLE 19 – 24 AFRICAN CHARTER ARE RIGHTS OF PEOPLE RATHER THAN INDIVIDUAL
Para. 24: In Kemi Penheiro SAN V. Republic of Ghana, ECW/CCJ/JUD/11/12 (2012) (unreported), where the Applicant alleged the violation of Articles 20 and 22 of the African Charter, the Court stressed that it is opinio juris communis that the rights referred to in Articles 19-24 of the African Charter are rights of (all) “peoples” in contrast to the rights of “every individual”, “every human being”, or “every citizen” proclaimed in Article 2-17.

⦿ HE WHO ALLEGES MUST PROVE
✓ Para. 25: In Petrostar (Nigeria) Limited V. Blackberry Nigeria Limited & 1 or (2011) CCJELR, the Court in its consideration reiterated the cardinal principle of law that “he who alleges must prove”.

✓ Para. 27: In Front for Liberation of the State Of Cabinda V. Republic Of Angola 5 th November 2013, ACHPR, 328/06, 54 TH Ordinary Session, where the Plaintiffs brought the application on behalf of the People of Cabinda on alleged violations of Articles 19, 20, 21, 22 and 24 of the African Charter, by infringing on their rights to natural resources, authorizing exploitation activities that did not favor the development of the people of Cabinda and allowing companies to operate in manners that are harmful to the environment and human health. The Commission held that the complainant failed to adduce evidence to support that the people of Cabinda were treated unequally in comparison to other people in Angola in violation of Article 19 of the Charter.

➥ REFERENCED (OTHERS)

End

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