➥ CASE SUMMARY OF:
The Registered Trustees of Jama’a FOUNDATION v FRN  – ECOWAS
by “PipAr” B.C. Chima
In the Community Court of Justice of The Economic Community of West African States (ECOWAS) – ECW/CCJ/JUD/04/20
➥ JUDGEMENT DELIVERED ON:
20th day of March, 2020.
➥ AREA(S) OF LAW
Right to life.
Right to protection.
➥ NOTABLE DICTA
⦿ WHO IS A VICTIM IN INTERNATIONAL LAW?
In essence; “A victim is anyone who suffers individual or collective harm (or pain) such as physical or mental injury, emotional suffering, economic loss, or generally any impairment of human rights as a result of acts or omissions that constitute gross violations of human rights, or serious violations of humanitarian law norms.” See The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Survivors of Violations of International Human Rights and Humanitarian Law, GA RES 60/147, PMBL, SEC IX, UN DOC A/RES/60/147 (MARCH 21, 2006). — para. 65
⦿ AN INDIVIDUAL CAN BRING AN ACTION ON BEHALF OF A CLOSE RELATIVE
An individual can bring an action on behalf of another only when Applicant is a close relation of a victim of violation of human rights. Following from the above, the Court holds that another teleological interpretation is that individuals who are not direct victims can ground an action before the Court if they are relation of the direct victim of violation of human rights. — para. 66
⦿ A VICTIM IS A PERSON WHO SUFFERS HARM DIRECTLY OR INDIRECTLY
It follows from the above that a victim can be a person who suffers directly or indirectly any harm or pain (physical or mental injury), emotional suffering (through loss of a close family member or relation), economic loss (loss of Properties) or any impairment that can be categorized as human rights violation. Additionally, other than the loss, harm or damage, an Applicant must prove an interest in the matter which must be direct and personal. This Court has through several decisions made exception for individuals and organizations who have not suffered directly or personally to institute actions in a representative capacity on behalf of victims. — para. 67
⦿ MEMBER STATES TO PROTECT CITIZENS – KILLING – REASONABLENESS IN RESPONDING
Member States must ensure that all reasonable measures have been taken to protect all the rights guaranteed under the African Charter and other International human Rights instruments to which they are signatories. It should however be noted that the Respondent will not automatically be held in violation of its obligation to protect once there are killings. The circumstances leading to the killing and destruction must be such as to render the Respondent in breach of its obligation to protect. The watch word here is reasonableness. Reasonableness depends on the circumstance of each case. What is reasonable in one case may be unreasonable in another case under different circumstances. Where there is an unanticipated and spontaneous uprising leading to the killing of persons the test of reasonableness will be how promptly the authorities responded to quell the uprising and protect further killings. However where the authorities had notice of the impending uprising and did nothing, either to protect the people or nip it in the bud, their action will be unreasonable even if they promptly arrived at the scene to quell the uprising once some people have been killed or injured. — para. 101
⦿ MEMBER STATES HAVE DUTY TO PROTECT ALL PERSONS IN TERRITORY
Similarly, this Court has held in plethora of cases that member States have a duty to protect all persons on its territory and to investigate and punish all acts of violations committed on its territory. See Hadijatu Mani Koraou v. The Republic of Niger (2004-2009) CCJELR p 240; Sidi Amar Ibrahim & Anor v. Republic of Niger (2011) ECW/CCJ/JUD/02/11; Badini Salfo v. Burkina Faso (2012) ECW/CCJ/JUD/13/12; Tidjani Konte v. Republic of Ghana; Obioma Ogukwe V Republic of Ghana, (2016) ECW/CCJ/JUD/20/16 para 8.3. — para. 117
⦿ FAILURE FOR MEMBER STATE TO INVESTIGATE IS VIOLATION OF INTERNATIONAL OBLIGATION
Where a State is aware of the occurrence of acts amounting to violation of human rights in its territory and fails to carry out effective investigation into the violation so as to identify those responsible and hold them accountable, such State will be in violation of its obligation under international law. In an Application where an allegation of the violation of the right to life and failure to investigate was made, the Court held that: “The right to life imposes an obligation on States to investigate all acts of crime and bring perpetrators to book.” SEE DEYDA HYDARA JR & 2 ORS V REPUBLIC OF GAMBIA ECW/CCJ/JUD/17/14. — para. 121
⦿ WHERE HARM IS DONE BY BREACH OF INTERNATIONAL OBLIGATION, STATE MUST MAKE REPARATIONS
State Parties are duty bound to provide effective protection of the rights and freedoms to all persons within their jurisdiction in respect of the international Human Rights Instruments they have signed unto. Where harm has been caused by the breach of its international obligations, it must make adequate reparations. The purpose of reparation can be viewed from two angles. On the one hand, it requires States to observe certain standards of law and order; and on the other hand to repair to the extent possible, any injuries caused as a result of a State’s failure to meet those standards. In situation of mass killings and wanton destruction of properties as in the case at hand, the obligations comprise a duty to effectively prevent, investigate, prosecute, punish and provide redress for human rights violations. These obligations are not mutually exclusive. Victims of human rights violations, or their next-of-kin, have the right to effective redress for the wrongs committed. Wherever possible, such redress should be in the form of restitution of rights violated. If restitution is not possible, fair compensation for pecuniary and/or moral damages must be awarded. Redress in the form of rehabilitation should also be envisaged whenever necessary for victims. Jurisprudence abound to support these obligations. In the case of INSTITUTE FOR HUMAN RIGHTS AND DEVELOPMENT IN AFRICA, AND ASSOCIATION MAURITANIENNE DES DROITS DE L’HOMME V. MAURITANIA, COMMUNICATION NO. 373/09 (2009) PARAGRAPHS 28 AND 29: The African Commission stated: “That victims of human rights violations legitimately expected that, they would receive effective remedies to restore their rights.” In the same vein this Court held in TIDJANI KONTE V. REPUBLIC OF GHANA (2004) ECW/CCJ/JUD/11/14, that: “…even when perpetrators have been prosecuted, the State is still required to ensure the payment of reparation or damages to the victims in respect of the violation of their human rights.” — para. 127 – 128.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Gberi-Be Quattara – Presiding;
Hon. Justice Dupe ATOKI – Member/Judge Rapporteur;
Hon. Justice Keikura BANGURA – Member.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The Applicants’ are Nigerian Citizens, predominantly Muslims and mostly Hausa/Fulani who have been living in the Southern part of Kaduna State of Nigeria from time immemorial and can trace their ancestors to about 1810 AD. They are community citizens within the definition. The 1st Respondent is the Federal Republic of Nigeria, a Member State of the ECOWAS and signatory to the African Charter on Human and Peoples’ Rights and other international human rights instruments. The 2nd Respondent is the Chief Law Officer of the Federation of Nigeria.
Applicant says the Federal Government of Nigeria has a duty and obligation under the relevant statutes and conventions to take pre-emptive measures to protect and guarantee the Applicants Rights to life. The failure of the Federal Government of Nigeria to provide security for the deceased [many who were killed] and those who are alive but lost their assets and properties and their continued refusal to provide for those who are alive now is contrary to Applicants Rights to life guaranteed under Article 4 (g) of the Revised Treaty of the Economic community of West African States (ECOWAS) 1993 which provides for the applicability of the provisions of African Charter on Human and people rights to members states of ECOWAS state as follows: “Member States have obligation ….for recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples Rights.”
The attacks by the Christian youths of the Southern Kaduna community led to the brutal killing of over 800 (Eight Hundred) and injury of over 70 (seventy) Muslim members of southern Kaduna in Kaduna State. The Respondent failed to act in a timely manner to minimise the casualties of dead and injured as well as the loss of properties.
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: DISMISSED]
I. Whether the Applicants has the Locus Standi to institute this action for themselves and on behalf of all Muslim members of Southern Kaduna State victims?
RULING: IN APPLICANT’S FAVOUR, in part.
Para. 57: “The killings of over 800 people and destruction of property worth several billions of naira is clearly a matter of Public interest for which the 1st Applicant whose legitimacy as an NGO is recognised, is legally empowered to bring this action on behalf of the affected communities and the Court so holds.”
On no authorisation to institute this suit, the Court held:
Para. 59: “The Court has a different approach when it relates to matters of public interest as captured hereunder ‘However, exceptions to this rule exist. These include but not limited to cases of collective interest (usually referred to as public interest litigations) and the non-victims receiving authority to act on behalf of the victims or their close relations. It is noteworthy that public interest litigations refer to cases in which Courts allow volunteers like Lawyers, Citizen Petitioners, NGO’s to bring actions on behalf of some victimized groups who ordinarily are without sufficient means of access to legal services or justice.’ SEE In THE INCORPORATED TRUSTEES OF FISCAL AND CIVIC RIGHT ENLIGHTENMENT FOUNDATION V. FRN (2016) ECW/CCJ/JUD18/16 & 2 ORS”
Para. 60: “the Court holds that the 1st Applicant needs no authorization and possess the locus standi to approach this Court in a representative capacity.”
Para. 61: “With regards to whether the 1st Applicant has the locus standi to institute this action for itself, this Court has maintained in its jurisprudence that a Non-Governmental Organization (NGO) cannot maintain an action as a victim of Human Rights violation. This position is supported in THE INCORPORATED TRUSTEES OF THE MIYETTI ALLAH KAUTAL HORE SOCIO-CULTURAL ASSOCIATION V. FEDERAL REPUBLIC OF NIGERIA (2011) ECW/CCJ/RUL/11/12 where the Court held as follows: ‘Thus there is a clear distinction between these two classes of cases, one in which the corporate body sues as the victim and the other in which it sues on behalf of the victim, the victim here being identified as a human being. In the former situation the corporate body has no locus or capacity to sue, but in the latter situation, it has’. In line with the Courts reasoning above, this Court holds that the 1st Applicant being an NGO lacks the requisite standing to institute this action as a victim of human rights violation. The objection of the Respondent in this regard is therefore upheld.”
Para. 63: “On the lack of capacity of the 2nd to 6th Applicants to bring this suit for themselves and on behalf of other victims because they have not suffered any loss, the Court has maintained an essential criterion in its flourishing jurisprudence that the Plaintiff in a human right action must attain the status of a victim who has suffered some loss or damage … To qualify as a victim, the Applicant must be able to establish that it has suffered a personal loss and have an interest that is direct and ascertainable. Further, the case of AZIAGBEDE KOKOU & 68 ORS V. REPUBLIC OF TOGO ECW/CCJ/JUD/07/13 PAGE 175 @24, the Court held that: ‘To claim to be a victim, there must exist a sufficient direct link between an applicant and the prejudice he deems to have suffered as a result of the alleged violation.’”
Applicants 4 & 5:
Para. 69: “The Court having reviewed the testimonies of Applicants 4 & 5 confirms that they alleged loss of children, grandchildren and family members respectively. Therefore being close members of the alleged victims the court find that Applicant 4&5 have locus stand to bring this action in a representative capacity.”
Applicants 2, 3 & 6:
Para. 70: “With respect to Applicants 2, 3&6 apart from been named as such in the originating application, they did not testify to any material fact nor swear to any witness statement on oath to enable a determination of their status as a victim. Since there is no evidence that they have suffered either direct or indirect loss to qualify them as victims, the court finds that Applicant 2, 3 & 6 cannot maintain an action for themselves.” With regards to their capacity to sue on behalf of other victims of the Southern Kaduna State crisis, they are covered under the principles of action popularis where spirited individuals are allowed to bring an action on behalf of a group for public wrong. That the killings and destruction as evidenced in this case is a public wrong is not in dispute. This issue was very well canvassed by this Court in the case of REV. FR .SOLOMON MFA & 11 ORS V. FEDERALL REPUBLIC OF NIGERIA ECW/CCJ/JUD/06/19 where the Court held at Paragraph 59 that: “Even though the Court held that the Applicants have failed to maintain this action in their personal capacity, the law recognizes the right of individuals and corporate bodies who are not victims to bring an action in a representative capacity under the principle of Actio Popularis. The Court under this situation will allow NGO and public spirited individuals to institute actions on behalf of group of victims usually from a community or class of people based on common public interest to claim for the violation of their human rights, because this group may not have the knowledge and the financial capacity to maintain legal action of such magnitude which affects the general public interest. Public interest issues are generally for the welfare and wellbeing of every individual in a society.”
II. Whether there is any cause of action for Applicants to institute this suit?
RULING: IN APPLICANT’S FAVOUR.
Para. 77: “The facts as presented by the Applicants raises fundamental human right issues capable of attracting the attention of the Court with a view to establishing whether or not the allegations complained of constitute a violation of the rights of the Applicants notably the rights contained in Articles 4 and 5 of the African Charter amongst others. The Court therefore holds that the Applicants have established a cause of action which is an allegation of human rights violations against the Respondent and the preliminary objection on this head is dismissed.”
III. Whether the exhibits attached being photocopy is admissible without proper foundation laid?
RULING: IN APPLICANT’S FAVOUR.
Para. 84: “The Court, upon analysing the objection of the Respondent and reply of the Applicants on the admissibility of the above referred documents, states that the Community Court of Justice of the ECOWAS does not rely on the constitutional provisions or other national legislations of Member States to determine its jurisdiction or its practice and procedure. It is trite that if a relevant document is in the possession of the adversary party and where upon request it has been refused, the Applicant can very well tender a copy of the said document. The applicant having proved such request was made (annexure J) has fulfilled the condition precedent and laid the appropriate foundation to tender a photocopy of the said reports. The Respondent having not denied the veracity of the content of the said reports but only to the extent that a foundation was not laid to tender a photocopy; the Court for reasons adduced above admits the White paper reports of the Kaduna State and the Federal Republic of Nigeria marked as exhibit 26, 27 respectively and all other exhibits sought to be tendered by the applicants and will analyse the probative value as canvassed by both parties.”
[ON MERIT: SUCCEEDED, IN PART]
I. Whether the Respondent (failed in) fulfilled their obligation to protect and prevent the violations of the human rights of the Applicants and the affected southern Kaduna Muslim victims listed in exhibits 2-20?
RULING: IN APPLICANT’S FAVOUR, in part.
Para. 98: “This Court reaffirms that the provision contained in Article 1 of the ACHPR created an obligation of absolute character requiring the States Parties to take legislative, judicial, administrative, educational and other appropriate measures to fulfil their obligations. These obligations cannot be derogated from for reasons that perpetrators are non-state actors. The obligation to protect is more of a positive nature and require state to guarantee that private individuals do not violate these rights. States will be held responsible for any violations of rights under the charter regardless if such acts of violations were carried out by state agents or not. It is in that wise that The African Commission held as follows: ‘The negligence of a State to guarantee the protection of the rights of the Charter having given rise to a violation of the said rights constitutes a violation of the rights of the Charter which would be attributable to this State, even where it is established that the State itself or its officials are not directly responsible for such violations but have been perpetrated by private individuals.’ Communication 266/03, KEVIN MGWANGA GUNME ET AL V. CAMEROON (2009), PARA 122; COMMUNICATION 272/03, ASSOCIATION OF VICTIMS OF POST ELECTORAL VIOLENCE & INTERIGHTS V. CAMEROON (2009).”
Para. 100: “It follows that the perpetrators need not be agents of States as the obligation imposes a duty to protect individual persons within their jurisdiction from violations of their rights both by state and non-state actors. The Court is therefore compelled to come to the inevitable conclusion that the Respondent having admitted to the facts of killings and destruction of properties cannot be exonerated on the basis that the perpetrators are non-state actors. The Court therefore holds that the Respondent is violation of the right to life of the within named deceased persons.”
Para. 103: “The Court therefore holds that the Respondent failed in its obligation under Article 1&4 of the ACHPR to protect the right to life of the 827 of the within named applicants listed in exbibt 26 from Zonkwa, Fadan Daji, Gidan Maga, Daddu, Farman, Madakiya, Matsirga, Samara Kataf, Maraban Rido, and Unguwan Rimi all within southern Kaduna district.”
Para. 107: “Additionally, the valuation by the Respondent of the damaged properties is further indicative of admission of the Applicants’ allegation of such destruction in the said communities. The Respondent has not put up any justifiable defence to the widespread destruction of the said communities other than as earlier contended that its agents were not implicated in said destruction. As held above, the court comes to the inevitable conclusion that since the allegation of destruction of properties which the Respondent itself described as ‘widespread’ has been admitted, they remain uncontroverted and need no further proof. The Court relying on its reasoning above comes to the same conclusion that the Respondent cannot be exonerated from liability based on the contention that the perpetrators are non-state actor. The Court therefore holds the Respondent in violation of its obligation to protect the property of the Applicants.”
Para. 112: “While there is merit in the defence as it pertains to the fact of existence of simultaneous crisis which overstretched the resources both human and material and negatively impacted on their ability to promptly respond to the later crisis that erupted in Southern Kaduna; That notwithstanding, the Court is of the view that in the light of the history of Southern Kaduna which is volatile in nature and therefore prone to incessant violent unrest, the Respondent ought to have made provisions for a full-fledged police station with well-equipped standby battle ready anti-riot policemen. Though the Respondent were not in a position to have averted the mayhem, their earliest response could have mitigated the losses. The effect of such tardiness was held to be in violation of the obligation of a state when the African Commission held in a post-election crisis thus; ‘Failure to take adequate measures to prevent the violence which led to the physical harm and material damage suffered by the victims violated Article 4 of the Charter of ACHPR.’ See the case of Association of Victims of Post Electoral Violence & Interights v. Cameroun; Communication 272/03, paragraphs 124 – 126.”
Para. 113: “The Court therefore holds that the deployment of security agents on the 19th of April 2011 in response to a crisis that started on the 18th of April 2011 and lasted throughout the night cannot be said to be prompt. The Respondent having failed to provide adequate and timely security to prevent the killing of all who died and were injured in Zonkwa, Fadan Daji, Gidan Maga, Daddu, Farman, Madakiya, Matsirga, Samara Kataf, Maraban Rido, and Unguwan Rimi all within Southern Kaduna before and during the alleged crisis is in violation of its obligation under Articles 1 & 4 of the ACHPR to respect, promote and ensure the right to life.”
Para. 116: “The Respondent did not file any evidence before the Court in support of compliance with above directive or that arrests were made at any time before. The importance of punishment of perpetrators cannot be overemphasised both in the protection and the prevention of the violation of such rights. States are expected to bring to book perpetrators in accordance with the provisions of the sanctions provided for in the criminal law of that particular state. Sanctions could range from imprisonment to offering of public apology depending on the extent of the liability of the perpetrator in the alleged violation. However, the state responsibility is to ensure that required punishment is enforced to act as a deterrent and prevent subsequent or future occurrence. The African Commission has held that: “Failure of states to investigate and prosecute allegations of unlawful killings or to provide redress to victims has amounted to a violation of Article 4 provisions.” See COMMUNICATION 266/03, KEVIN MGWANGA GUNME ET AL V. CAMEROON (2009), PARA 122; COMMUNICATION 272/03, ASSOCIATION OF VICTIMS OF POST ELECTORAL VIOLENCE & INTERIGHTS V CAMEROON (2009), PARA 115.”
Para. 118: “The admission by the Respondent in exhibit 26 supra that no arrest was made supports the allegation of the Applicant that it failed to put in place measures to identify and punish perpetrators in fulfilment of its obligation to prevent the violation of the human rights of the Applicants’ communities. In view of the facts that there is no evidence before the Court to show that some persons have been charged and are being prosecuted, the court finds that the Applicants’ claim that the Respondent did not arrest or prosecute any perpetrators of the attack has been proved.”
Para. 122; 124: “The conclusion is that a prompt, effective, impartial investigation must be conducted in fulfilment of a States’ obligation under the ACHPR and other international human rights instruments to which it is a signatory. With regards to the case at hand, exhibits 26 & 27 are evidence that the Respondent did in fact conducted a prompt and impartial investigation. Prompt; because the crisis took place on the 18 th /19 th April 2011 and the panel of investigation was set up on the 11 th of May 2011. Impartial; based on the composition of the panel which include clerics of both warring religions, private individuals and community elders and leaders. The Applicants have not raised a violation of this obligation as they indeed tendered the 2 exhibits (26&27) which supports this fact. … The Court therefore holds that the Respondent is not in violation of its obligation to conduct an investigation into the said crisis.”
II. What is the actual and proof of amount alleged to have been released by the Respondent to the States affected by the violence of 2011?
Para. 134 – 135: “As it stands, the Court is presented with two different amounts released by the Respondent. a) 5.7 billion Naira to all the 9 affected States which was pleaded by the Respondent. b) 7 billion Naira as testified to by the PW4. This testimony does not indicate to whom the release was meant for. However from the PW4’s statement that ‘the Federal Government have approved 7 billion Naira which 3 billion Naira was released leaving a balance of 4 billion Naira that is from the Federal side’, the ordinary interpretation is that in the absence of any evidence to the contrary, since he is the Applicants’ witness he can only speak for the Applicants therefore the 3 billion Naira was for the payment of the Victims of Kaduna State and thus the balance of 4 billion can only be outstanding in their favour. This is clearly in contradiction with the pleading of the Respondent that 5.7 billion was released for ALL the 9 affected states. In this wise, the testimony of the PW4 cannot avail the cause the Respondent as the totality of his testimony leads to a conclusion that the whole 7 billion was meant for victims of Kaduna States only. Having not provided any evidence to support the claim that 5.7 billion Naira was released and having found that the averment of PW4 is inconsistent with Respondent’s pleadings the Court holds that the Respondent did not establish that any amount was released to the affected states particularly Kaduna state.”
III. What is the proof that within named Applicants were beneficiary of the payment of the 3billion Naira alleged to be released?
RULING: IN APPLICANT’S FAVOUR.
Para. 137: “The Court recalls that before the closure of this case for judgment, the Respondent was availed 2 adjournments over a period of 10 months to provide the relevant proof of the payments alleged to have been made to the Applicants. The Respondent failed and or neglected to provide any such proof. The court, based on the above, finds that that the Respondent has not established via any evidence that it paid any compensation to the within named Applicants.”
➥ MISCELLANEOUS POINTS
Para. 140: “While no sufficient value can be placed on life, in consideration of all facts before it, the Court awards the sum of 5 million to each of the next of kin as compensation for violation of the right to life of the 827 named Applicants as listed in Exhibit 26.”
Para. 143: “It is trite law that a party claiming for compensation for a loss or harm must proof same in detail and value. In the instant case the Applicants have not provided details of the nature of the injury such as that the injury led to the loss of a leg, an eye, permanent incapacity or any other harm or wound which is directly linked to the act or inaction of the Respondent, such injury. The claim is neither supported by any medical report. Even when the type of injury is proved. the damages resulting from same needs to be established. From the claim of the Applicant, each injured person is ascribed the sum of 100, 000.00 Naira. The Court is inclined to ask if the injuries sustained by the 71 victims are alike to command the same amount of 100, 000.00 Naira per person. The Court is not a charitable organization. In the absence of specific details of the injury sustained by the Applicant and proof thereof, their claims fail and same is hereby dismissed.”
Para. 144: “The Applicants’ claim for office structure looted/destroyed is in the sum of 181,952,970,00 Naira. However, the court notes that the claim was not pleaded at all in the context of the number of offices looted/destroyed, the location, the description and more. This claim was only imputed in the compensation list. Same being unsubstantiated fails and the court so holds.”
➥ REFERENCED (STATUTE)
Articles 1, 4, 14 African Charter.
➥ REFERENCED (CASE)
⦿ ACTIO POPULARIS – PUBLIC RIGHT WORTHY TO BE PROTECTED
In SERAP V. FRN (2010) CCJELR, PG. 196, PARA 32, & 34 the Court stated that: “The doctrine of actio popularis was developed under Roman law in order to allow any citizen to challenge a breach of a public right in Court. This doctrine developed as a way of ensuring that the restrictive approach to the issue of standing would not prevent public spirited individuals from challenging a breach of a public right in Court. In public interest litigation, the Plaintiff need not show that he has suffered any personal injury or has a special interest that needs to be protected to have standing. Plaintiff must establish that there is a public right which is worthy of protection which has been allegedly breached and that the matter in question is justiciable.”
⦿ INTEREST IS THE MEASURING ROD FOR A CAUSE OF ACTION
ODAFE OSERADA V. ECOWAS COUNCIL OF MINISTERS, ECOWAS PARLIAMENT & ECOWAS COMMISSION, ECW/CCJ/JUD/01/08 @ 27, the Court held that: “Generally, and from a legal standpoint, the necessity for an Applicant to provide justification of interest in a case is attested to by the adage that where there is no interest, there is no action, and also an interest is the measuring rod for an action. In other words, an application is admissible only when the applicant justifies that he brings a case before a Judge for the purposes of protecting an interest or defending an infringement of such. Such an interest must be direct, personal and certain.”
⦿ CLOSE RELATION MAY SUE, WHERE DIRECT VICTIM IS UNABLE TO SUE
In STELLA IFEOMA & 20 ORS V. FEDERAL REPUBLIC OF NIGERIA (2015) thus: “when it becomes impossible for him whose right is violated to insist on that right or to seek redress, either because he is deceased or prevented in one way or the other from doing so, it is perfectly normal that the right to bring his case before the law Courts should fall on other persons close to him…” This was further emphasized when the Court held that: “if for any reason, the direct victim of the violation cannot exercise his/her rights, in particular, for being irreversibly incapacitated or having died as a result of the violation, the closest family members can do so, while assuming the status of indirect victims.”
⦿ PERSON WHO ASSERTS HAS ONUS TO PROVE
In FEMI FALANA & ANOR V REPUBLIC OF BENIN & 2 ORS (2012) ECW/CCJ/JUD/02/12 PG. 34, the court held that: “As always, the onus of proof is on a party who asserts a fact and who will fail if that fact fails to attain that standard of proof that will persuade the court to believe the statement of the claim”. Vide SIKIRU ALADE VS FEDERAL REPUBLIC OF NIGERIA (2012) ECW/CCJ/JUD/10/12. PARA 48.
➥ REFERENCED (OTHERS)
⦿ WHAT IS LIBERTY OF THE PERSON?
The General Comment No 35 of the Human Right Committee on Art 9 of the Convention on the right to liberty and security of persons (which is pari material to Art 6 of the Charter) states that as follows; . “Liberty of person concerns freedom from confinement of the body, Security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity. The right to security of person protects individuals against intentional infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained.”