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132
Essien v The Gambia and Another
(2007) AHRLR 131 (ECOWAS 2007)
(1) That the plaintiff failed to join the Commonwealth Secretariat
which is necessary party to the claim and who were the architects of the
employment relationship between the plaintiff and the defendants
which is the main issue of the action.
(2) The applicant in bringing this matter before this Court has failed to
exhaust the local remedies available under articles 50 and 68 of the
African Charter on Human and Peoples’ Rights which is the international
norm under which this action is brought before this Court.
(3) That the applicant’s claim for violation of his fundamental rights
based upon facts showing unresolved/unrenewed contract of service,
counter offers and claims based on quantum merit is incompetent
before the court.
3. The defendants further distilled from the above relief the
following issues:
(1) Whether the non-joinder of the Commonwealth Secretariat as a
party to the suit did not affect its competence and consequently the
jurisdiction of the Court to adjudicate thereon.
(2) Whether the applicant’s claim is competent before the court having
failed to exhaust local remedies available to him as stipulated by article
56(5) of the African Charter in view of his claim being based on articles
60 and 66 thereof.
(3) Whether the applicant’s claim for violation of his fundamental rights
based upon facts showing unresolved/unrenewed contract of service,
counter offers and claims based on quantum merit is competent before
the court.
(4) Whether in the circumstances of paragraphs 1 to 3 above the Court
can properly exercise jurisdiction on applicant’s suit as constituted.
With these reliefs and issues, learned counsel to the parties put in
their written addresses and adopted same for the consideration of
this preliminary objection.
The legal arguments by the parties
4. Learned counsel for the defendants made his submission on
three main issues upon which the preliminary objection should be
resolved in their favour. He submitted on issue one that the basis of
the plaintiffs claim was the contract of service granted him by the
Commonwealth Secretariat and it was essential for an action based
on such contract to join the Commonwealth Secretariat as a
necessary party and where the plaintiff failed to join such a necessary
party, the action should fail as the Court is divested of its jurisdiction
to adjudicate on the matter. In furtherance of the above
justification, counsel reiterated the fact that the contract with
Commonwealth Secretariat had a clause for arbitration which had not
been pursued when the dispute arose before the plaintiff accessed
this Court. Another point counsel canvassed related to the violation
of the doctrine of audi alteram partem and that the said violation
rendered the suit incompetent and relied on the case of Olajide
Afolabi v Federal Republic of Nigeria, 2004 ECW/CCJ/04 at pages 65-
66 wherein this Court stated thus:
It is a well established principle of law that a court is competent when it
is properly constituted as regards numbers and qualifications of the
members of the bench, and no member is disqualified for one reason or
African Human Rights Law Reports