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Essien v The Gambia and Another
(2007) AHRLR 131 (ECOWAS 2007)
133
another; and the subject matter of the case is within its jurisdiction and
there is no feature in the case which prevents the court from exercising
its jurisdiction and the case comes before the court initiated by due
process of law and upon fulfilment of any condition precedent to the
exercise of jurisdiction.
5. In reply, learned counsel to the plaintiff made submissions on
several issues on these terms. On the first issue, he contended that
the non-joinder of the Commonwealth Secretariat as a party did not
violate the doctrine of audi alteram partem and consequently, same
cannot render the suit improperly filed as to affect the jurisdiction of
the Court. He referred to the cases of Afolabi v Federal Republic of
Nigeria (2004) supra; Madukola v Nkemdillm (1962) 2 SCNLR 341; AG
Lagos State v Attorney-General of the Federation (2003) NWLR (Pt
833) at page 74 and submitted that the ratio decidendi of the cases
cited by the defendants are not on all fours with the case at hand. On
the non-joinder of Commonwealth Secretariat, counsel submitted
that the Commonwealth Secretariat is not a necessary party to this
suit and that the non-joinder did not divest this Court of its
jurisdiction to hear and determine the suit on merit. Furthermore
counsel stated that the relationship between the plaintiff and the
Commonwealth Secretariat ended/expired on 4 February 2004 when
the contract between them came to an end and that made the
Commonwealth Secretariat an unnecessary party to warrant the
joinder as a party. Still on the joinder, counsel to the plaintiff stated
that since there is no relief sought against the Commonwealth
Secretariat and the Commonwealth Secretariat became an
unessential party for them to be joined as a party to the action. He
urged the Court to dismiss the preliminary objection on that ground.
6. On issue two, counsel to defendants contended that the
plaintiff’s claim was incompetent for failure to exhaust local
remedies available to him as stipulated in article 56(5) of the African
Charter on Human and Peoples’ Rights on the grounds that his claim
is based on articles 50 and 68 thereof. He contended that the Court
cannot exercise jurisdiction over the plaintiff’s claim in violation of
articles 56(5) and 60 of the African Charter which enjoined that a
plaintiff shall exhaust local remedy before he can access the Court as
provided under article 10(5) of the Supplementary Protocol. He
stressed that article 4(g) of the revised Treaty enjoined that the
Member States of the Economic Community of West African States
(ECOWAS), to ensure the recognition, promotion and protection of
human and peoples’ rights in accordance with the provisions of the
African Charter on Human and Peoples’ Rights. In reply, counsel to
the plaintiff was of the view that this arm of objection was
misconceived and that the provisions of articles 30 to 68 of the
African Charter on Human and Peoples’ Rights are not synonymous
with the Community Court of Justice and are therefore inapplicable
to this Court. He urged the Court to dismiss the objection.
ECOWAS Community Court of Justice