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Essien v The Gambia and Another
(2007) AHRLR 131 (ECOWAS 2007)
135
effect of the said provisions as to the competence to adjudicate on
the matters as human rights violations, same shall be determined at
the trial, as provided in the African Charter on Human and Peoples’
Rights and the Universal Declaration on Human Rights which the
member states are signatory to.
The non-joinder of parties
12. The Court also considered that there are no grounds for the
defendants to constitute a demurrer out of the fact that the
Commonwealth Secretariat was not summoned to the action. Indeed,
the audi alteram partem rule targets a case of an indispensable party
that cannot be omitted and such a party is described as a necessary
party. The doctrine of jurisprudence states that ‘a party directly
involved in’ the litigation should be made a party as to allow his
participation in the case, thus complying with the doctrine of audi
alteram partem which may not be the case in this application. The
defendants stated their inability to establish contact with the
Commonwealth Secretariat for the renewal of the contract in
question. The complaints by the parties are made up in diversity of
legal points and some of them relate to the connection of the parties
to the Commonwealth Secretariat and why the failure to join them is
fatal to the plaintiff’s claim.
13. On issue no 1, the defendants relied on the Supreme Court
case, in the case of A-G Lagos State v A-G Federation and contended
that the failure to join the Commonwealth as a party or proceed to
arbitration as required was fatal to the plaintiff’s case. Counsel to the
defendants further relied on the cases of Olajide Afolabi v Federal
Republic of Nigeria (2004) supra and Madulolo v Nkemdelim (1962) 2
SCNLR 341 wherein the condition for jurisdictional competence were
relied upon.
14. On the converse, the applicant referred to the authorities
relied upon by the defendants to submit that same are most
irrelevant and inappropriate for the consideration of the instant case.
He submitted that the non-joinder was never an issue in the cases
relied upon, therefore the ratio decidendi are not on all fours with
the instant case and urged the Court to discountenance them. As to
the case of Olajide Afolabi v FRN supra, referred to by counsel to the
defendant, which the counsel to the plaintiff contended that it was
most irrelevant, and that in the face of the instant case is
misconceived. The authority dealt inter alia on the competence of
the Court to adjudicate in respect of a matter instituted by an
individual as opposed to the provision of article 9 of the original
Protocol of the Court in the instant case, the issue for the
consideration of the Court is on the competence. The principles in the
case of Afolabi therefore are on all fours with the instant case
regarding the point on competence.
ECOWAS Community Court of Justice