➥ CASE SUMMARY OF:
The Registered Trustees of the Socio-economic Rights & Accountability Project (SERAP) v President of the Federal Republic Of Nigeria (FRN) & Ors. (2010)
by “PipAr” B.C. Chima
In the Community Court of Justice of The Economic Community of West African States (ECOWAS) – ECW/CCJ/APP/08/09
➥ JUDGEMENT DELIVERED ON:
10th day of December, 2010.
➥ AREA(S) OF LAW
Jurisdiction over corporate bodies.
➥ NOTABLE DICTA
⦿ WHEN A LARGE COMMUNITY IS AT STAKE, ACCESS TO JUSTICE IS FACILITATED
“56. There is a large consensus in International Law that when the issue at stake is the violation of rights of entire communities, as in the case of the damage to the environment, the access to justice should be facilitated. 57. Article 2 (5) of Convention of “Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matter “defines the “public concerned” with environment protection as “public affected or likely to be affected by, or having an interest in the environment decision-making for the purposes of this definition nongovernmental organization promoting environment and meeting requirements under national law shall be deemed to have an interest”. Article 9 of the same instrument confirms the access to justice to the public concerned as defined in Article 2 (5).”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice M. Benfeito Ramos
Hon. Justice H. N Donli
Hon. Justice Anthony A. Benin
Hon. Justice Clotilde Medegan
Hon. Justice E. Monsedjoueni Potey
⦿ FOR THE APPLICANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The Plaintiff, SERAP, filed on 24th July 2009 an application against the Defendants for alleged violation of Human Rights in the region of Niger Delta, Federal Republic of Nigeria.
The applicant alleges that the Niger Delta, a region of federal Republic of Nigeria, has suffered for decades from oil spills, which occur both on land and offshore. Oil on land destroy crops and damage the quality and productivity of soil that the communities use for farming . Oil in water damages fisheries and contaminates water that people use for drinking and other domestic purposes. Widespread and unchecked Human Rights violation related to the oil industry have pushed many people deeper into poverty and deprivation, fuelled conflict and led to a pervasive sense of powerlessness and frustration.
Hundreds of thousands of people are affected, particularly the poorest and other most vulnerable sector of the population, and those who rely on traditional livelihoods such as fishing and agriculture. However, the Human Rights implications have received little attention from the government of Nigeria or the oil companies, the Defendants herein.
People living in the Niger Delta have to drink, cook and wash with polluted water; they eat fish contaminated with oil and other toxins and the land they use for farming is destroyed because of the lack of respect for the ecosystem necessary for their survival. After oil spills the air they breathes reeks of oil and gas.
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: ALLOWED, in part]
The issues raised by the Defendants that require analysis from the Court are the following, with their resolutions:
(a) the existence of the Plaintiff as a juridical person or legal entity under Nigeria law;
IN APPLICANTS FAVOUR.
para. 54: “54. With the respect to the existence of the Plaintiff itself and regularity of its constitution under Nigerian Law , what emerges from the evidence produced before the Court, is that the Plaintiff is entity duly and legally registered under the Company and Allied matters Decree 1 of 1999 of the Federal Republic of Nigeria with Certificate of Incorporation (CAC/IT/No. 17206), as confirmed by ANNEXURE A in the Plaintiff’s Brief of Argument. Furthermore, Plaintiff’s legal capacity was admitted by Court in a previous case involving the Plaintiff in Registered Trustees and Accountability Project vs. Federal Republic of Nigeria & Universal Basic Education Commission. In a ruling delivered on 27/10/2009 the Court stated thus ” The Plaintiff (SERAP) is a human rights non¬governmental organization registered under Laws of the Federal Republic of Nigeria”. Consequently, in the absence of compelling evidence to the contrary, the Court holds that the Plaintiff is a legal entity duly constituted.”
(b) the capacity or locus standi of the Plaintiff to institute proceedings for alleged violation of human rights that affects people living in the region of Niger Delta;
IN APPLICANTS FAVOUR.
para. 61 – 62: “61. Based on those authorities, and taking into account the need to reinforced the access to justice for the protection of human and people rights in the African context, the Court holds that an NGO duly constituted according to national law of any ECOWAS Member State, and enjoying observer status before ECOWAS institutions, can file complaints against HumanRights violation in case that the victim is not just a single individual, but a large group of individuals or even entire communities. 62. Thus, in considering the social purposes of the Plaintiff and the regularity of its constitution it does not need any specific mandate from the people of Niger Delta to bring the present lawsuit to the Court for the alleged violation of human rights that affect people of that region.”
(c) the jurisdiction or competence of the Court to deal with the suit lodged against the Defendants who are not Member States of ECOWAS, Community Institutions or Community Officials;
IN RESPONDENTS FAVOUR.
para. 63: “63. The Community Court of Justice, established by Article 15 of ECOWAS Treaty is the main judicial organ of the Community. The Supplementary Protocol (AP/SP.1/01/05) modified the ECOWAS Treaty and conferred on the Court competence to determine cases of Human Rights violation that occur in any Member State of the Community. The Protocol on Democracy and Good Governance imposes on the on the States the obligation to apply the African Charter on Human and Peoples’ Rights as well as other International instruments in their respective territories. The Federal Republic of Nigeria signed the ECOWAS Treaty as well as other community instruments like the Protocols on Democracy and Good Governance and on the Competence of the Community Court of Justice. Therefore, there is no doubt with respect to the jurisdiction of the Court of justice to adjudicate any case of alleged violation of the Human Rights that occurs in the Federal Republic of Nigeria and for which it should be held accountable.”
para. 71: “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 Rights, as laid down in Peter David v. Ambassador Ralph Uwechue delivered on the 11th day of June 2010.”
para. 72: “From what has been said, the conclusion to be drawn is that for the dispute between individuals on alleged violation of Human Rights as enshrined in the African charters on Human and Peoples’ Rights, the natural and proper venue before which the case may be pleaded is the domestic court of the State party where the violation occurred is only when at the national level, there is no appropriate and effective forum for seeking redress against individuals, that the victim of such offences may bring an action before an international court, not against the individuals, rather against the signatory State for failure to ensure the protection and respect for the Human Rights allegedly violated.”
para. 73: “Neither individuals nor corporations are parties to the treaties that the international Tribunal with jurisdiction over human rights are empowered to enforce.”
“78. The Court sitting and adjudicating in public, in the Community Court of justice, in Abuja hereby holds that it has no jurisdiction to adjudicate on the case brought by the Plaintiff against the corporate defendants.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Article 4 ECOWAS Revised Treaty;
Articles 1, 2, 22, 24, African Charter on Human and People’s Rights.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)