By Oluboyo Taiwo Olamide
Introduction
Under international law, the jurisdiction of court is a frequently contested matter. This jurisdiction can be tied to several strings, it could be the invocation of a particular provision of a treaty law granting the court jurisdiction, the court’s founding document outlining its jurisdiction; the existence of a legal dispute; and/or the admissibility of the matter before the court.
The Economic Community of West African States (ECOWAS) Community Court of Justice had to deal with jurisdictional issues and other salient matters in Zadi Philipe v. The Authority of Heads of State and Government of ECOWAS & Anor, ECW/CCJ/JUD/05/25.
The case under review elucidates further on the jurisdiction of the ECOWAS court, the admissibility of a matter before it, the due process for instituting an action, principles guiding the issuance of a default judgment, and a consideration of when an application is well-founded.
Facts
The Applicant in this case, Mr. Zadi Philipe, is a citizen of the Republic of Ivory Coast. The Respondents are the Authority of Heads of States of ECOWAS (First Respondent) and the Commission of the Economic Community of West African States (Second Respondent).
The Applicant alleged the violation of his rights and sought financial compensation for the damage caused by the Respondent. The events leading to the alleged violation happened between 28th December 2021 and 10th January 2022 when certain travel measures were imposed by the Respondents, which prevented the Applicant from embarking on his return flight to Abidjan. The Applicant also argued that the measures taken by the Respondents had great financial implications for him as he had to purchase another flight ticket. He relied on a number of pleas in law in furtherance of his claim. These pleas include but are not limited to the following: Articles 1, 2, 9, 22 and 30 of Protocol A/Pl 7/91 on the Community Court of Justice; Articles 77 (3) and 59 of the Revised ECOWAS Treaty; Article 25 of the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, among others.
Regarding these claims, the Applicant sought a number of reliefs, including: that the court should adjudge and declare that the measures taken on 9 January 2022 by the first Respondent, especially the immediate closure of the land and air borders between ECOWAS countries and the Republic of Mali, are a clear violation of several international instruments; that the Respondents are liable for material, financial and moral damages suffered by the Applicant as a result of these measures, which he argued had no Community legal basis. The applicant therefore sought compensation from the Respondents for the consequential damage, among others.
On 24th of October 2023, the Applicant filed an application for Judgement by Default as the Respondents neither provided a response to the Applicant’s claims nor entered an appearance before the court. During the court’s virtual session on 30th of September 2024, the Applicant was allowed to move his application for Judgement by Default as the Respondent was absent and unrepresented in court. The Applicant’s prayers before the court are to wit: for the court to find and hold that it has requisite jurisdiction to grant the Application, that the Application does not amount to a denial of the Respondents’ right to fair hearing and for the court to enter a Default Judgment in favour of the Applicant and grant all the reliefs being sought by him in the Initiating Application.
Decision of the court
The court predicated its decision on three criteria, in consideration of the claims of the Applicants and the application for judgement by default. There are: whether the application initiating the proceedings is admissible; whether the appropriate formalities have been complied with; and whether the application appears well-founded. The court recalled that the essential nature of these requirements to the issuance of judgement by default by the court was affirmed in the Mohammed Bah v. The Republic of Sierra Leone.
On the first criterion, the court considered the provision of Article 10(c) of the Protocol of the Court (A/P1/7/91) as amended by the Supplementary Protocol (A/SP.1/01/05) which provides direct access to individuals and corporate bodies to seek redress for the acts of a Community Official before the court. The court adopted the ratio reached in the case of Linas International Nigeria Ltd v Ambassador of Mali which held that Article 10(c) of the Supplementary Protocol on the Court relates to acts committed by officials of the Community which causes injury or damage to an individual or legal entity. Considering this ratio and the nature of the claim before the court which concerned the damage resulting from the alleged act of the Respondents and brought by an individual Applicant, the Court declared the application admissible pursuant to Article 10(c) of the Supplementary Protocol and that the Applicant has fulfilled Article 90(4)(a) of the Rules of the Court.
Regarding the second criterion, the Court relied on the provisions of Article 90(1) and (4) (b) of the Rules of the Court. The court found it necessary to look into the procedural facts that led to the application for the judgment by default. The court reasoned that it is settled law, as codified in Article 90(1) of the Court Rules that where a defendant on whom an application initiating the proceedings has been duly served fails to lodge a defense to the application in the proper form within the time prescribed, the Applicant may apply for judgment by default. The court observed from the facts of this case that despite the Applicant’s initiating application which was lodged in the Court’s Registry and subsequently served on the Respondent, the latter failed to provide a statement of defence, and to even make an appearance. The court further held that due to the effluxion of time, as the per the Rules of the Court, the Applicant has the right to a judgement by default. The court found that the application satisfies the condition in Article 90 (4) (b) of the Rules of the Court as it was appropriately brought and the formalities of admissibility having been met.
In dealing with the third criterion, the Court had to look into the subject matter in the initiating application. And for the Court to do that, it had to consider two major issues – firstly, whether it has jurisdiction to hear and determine the claims, secondly, whether the application appears well-founded as Article 90 (4)(c) of the Rules of the Court requires. The Court found that it had the competence to determine the claims before it pursuant to Article 9(1)(g) of the Supplementary Protocol. The Court affirmed that Article 9(1)(g) Supplementary Protocol vests it with competence as long as a claim for damages is brought against a Community Institution among others, for acts or omission done in the exercise of its official function. This was the ratio reached in Abdurahim v Council and Commission, where the Court took a step towards protecting the rights of those subjected to European Union sanctions.
However, the court dismissed the claim and pleading of the Applicant regarding violation of his human rights on the ground that the Respondents cannot be held liable for human rights violations. The court based this decision on its established jurisprudence that human rights claims are premised on fundamental treaties ratified by Member States, so that as the Respondents have not ratified any such fundamental human rights treaties and Conventions, they cannot be held liable for any breach resulting in a violation thereunder. This position was articulated in National Coordination of Department Delegates of Cocoa Coffee Sector v Republic of Cote D’ Ivoire. The Court further noted that the Applicant has even failed to reference the relevant treaty or convention under which it has premised the violation of human rights. Notwithstanding that, the Court reiterated that the claim is properly within its competence under Article 9(1)(g) of the Protocol of the Court.
Article 9(1)(g) is of particular interest here because it is a unique provision that deviates from the human rights jurisdiction of the Court to grant competence to individuals to sue a community institution before the Court. The article 9(1)(g) jurisdiction, unlike the article 9(4) jurisdiction – dealing with human rights – is not anchored on human rights violations but on compensatory remedy for an individual who has suffered injury from the acts or omission done by a community institution in the exercise of its official function. This signals the growing confidence of the court in asserting its court of justice mandate at the suit of the individual, rather than tailoring its jurisdiction at the suit of individual along a narrow human rights violation prism.
For the sake of comparison, article 9(1)(g) provides that the court has competence to adjudicate on any dispute relating to “[t]he action for damages against a Community institution or an official of the Community for any action or omission in the exercise of official functions”. This jurisdiction is tied to Article 10(c) which grants access to “individuals and corporate bodies in proceedings from the determination of an act or inaction of a Community official which violates the rights of the individuals or corporate bodies”. On the other hand, Article 9(4) which states that “[t]he court has jurisdiction to determine case of violation of human rights that occur in any Member State” which jurisdiction is tied to article 10(d) under which individuals can come only for relief for “violation of their human rights”. When compared, it is easy to see the uniqueness of article 9(1)(g). This becomes particularly obvious when considered alongside the jurisprudence of the Court under which an allegation of human rights violation is a condition precedent to engaging the jurisdiction of the Court under articles 9(4) and 10(d), and only against state parties to the exclusion of all other entities, including the institutions of the community.
As to the second arm of the third criterion, the Court could only adjudge whether the application was well founded after considering the legal basis (or lack thereof) of the action of the Respondent complained of, or determining whether the act of the Respondent was arbitrary. Regarding the latter, the court had to resort to the pleas put forward by the Applicant in his claim. This is because the Applicant alleged that the act of the Respondent was contrary to the pleas in law put forward. The court considered the provisions of Article 77(3) of the 1993 Revised Treaty of ECOWAS and found that the Applicant’s claim, that the Respondent implemented measures against the Republic of Mali that were detrimental to him as an ECOWAS citizen, was untenable because Article 77(3) of the Revised Treaty gives the Respondents the mandate to act under the circumstances in which they acted.
Concerning the damages sought by the Applicant, the court held that damages can only be awarded where the acts of the Respondent are arbitrary and really in breach of community law. The Court found, based on the situations in Mali and its cessation to function as envisaged under the Revised Treaty, it was necessary that the Respondent resort to various legal provisions in fulfillment of its obligations. While the decision to impose sanctions is provided for in Article 77(3) of the Revised Treaty, the Court further noted that this is guided by the tenet laid down in Article 1(b) & (c) of the Protocol A/SP1/12/01. The court held that all these provisions provide the legal basis for the imposition of sanctions on a Member State contrary to the Applicant’s claim. Based on this, the Court found that the act of the Respondent in imposing sanctions on the Republic of Mali is legal and not arbitrary.
In determining whether the application was well-founded, having established that the act complained of is legal, the court considered the facts of the case and the prevailing circumstances to adjudge if Article 90(4)(c) of the Rules was met. The Court viewed the timing of the Applicant’s actions vis-à-vis the prevailing conditions in Mali, and placed his timing between a number of successive coups d’etat. The Court found that the temporal period of the claim divests the Applicant of the identity as ‘an innocent bystander’ in claiming for damages for acts which are legal under the Community law. What was apparent to the Court was that 2021 (which was when the Applicant’s air travel scheduling began) was a year of political turmoil in the Republic of Mali, which led to the imposition of several sanctions at various points in the year. And that prior to the 9th of January 2022 sanctions, the Respondents had instituted sanctions on the 6th November 2021 as the situation in Mali was severely abnormal. Following the court’s reasoning on the timing of the act leading to the claim, it noted that the 1st Respondent’s act of sanctions with regards to the political situation in Mali, predated the Applicant’s commencement date of ’cause’, which was 6th of December 2021.
Thus, the court found that the sanctions which the Applicant claims resulted in personal damage to him was a continuation of measures laid down by law as there was no improvement in the situation in Mali. The court, in relying on the decision arrived at by the European Court of Justice in Gerard Buono & Ors v European Commission rejected the possibility of a liability of damages resulting from a legal act of the Respondents. Based on the strength of the foregoing, the Court dismissed all claims brought by the Applicant as it found that the conditions under Article 90 (4) of the Rules of the Court were not cumulatively met and therefore declared that the initiating application did not appear well-founded.
For a fuller view on the legality of some sanctions imposed by ECOWAS, when placed alongside the extant ECOWAS laws, see the Republic of Niger & Seven others & Ors v. The Authority of Heads of State and Government, ECOWAS & Ors Application No. ECW/CCJ/APP/34/23, discussed here.
Conclusion
In this case, and like in many other cases, the ECOWAS Community Court of Justice has emphasized a notable ground for it to exercise jurisdiction – through the court enabling instruments while upholding the admissibility of the matter. This case also laid to rest the arguments against default judgment, most especially that it is unfair to a party who does not have proper notice. In the reviewed case, it is evident enough that sufficient notice was granted to the Respondents. The case also upheld the rejection of liability of damages resulting from a legal act.
Oluboyo Taiwo is a first-class graduate of law from the University of Benin, Nigeria.
