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Essien v The Gambia and Another
(2007) AHRLR 131 (ECOWAS 2007)
except the points deferred for consideration in the main/substantive
action as provided by article 87 of the Rules of Procedure of this
Court.
(2) Whereas the defendants argued that the Court is devoid of its
competence to determine this case without the joinder of the
Commonwealth Secretariat; the Court decides that it is competent to
hear the substantive case on its merit despite the non-joinder of the
Commonwealth Secretariat and that the Commonwealth Secretariat
is not a necessary party which must be joined by the plaintiff.
(3) Whereas the defendant argued that the Court is devoid of its
jurisdiction for non-exhaustion of the local remedies as provided in
article 56(5) of the African Charter on Human and Peoples’ Rights; the
Court decides that article 56(5) of the African Charter on Human and
Peoples’ Rights are available in the proceedings before the
Commission on African Charter on Human and Peoples’ Rights; and
that article 10(d) of the Protocol gave no condition precedent in
accessing the Court except where the action lis pendens before
another international court.
(4) Whereas the defendants argued the issues of the contract
relating to the parties subsisting and involving the Commonwealth
Secretariat and that the issues of payments which the plaintiff
accepted part of vitiate the action filed in breach of not exploring the
settlement of same by is arbitration and that the main application
was not properly instituted under the human rights violations and that
the complaints of the plaintiff are not justiciable as human rights
violations, the Court decides that the issues stated herein touch on
the substantive case which by article 87(5) of the Rules of Procedure
of this Court shall he taken in the substantive action.
Costs
Whereas the defendants made no specific application for cost in the
preliminary objection proceedings and whereas the award of cost is
usually made in the final judgment, with the award proceeding to the
successful party, the Court decides that the award of costs shall be
made at the final determination of the substantive proceedings.
Consequently, no award of costs is made.
African Human Rights Law Reports