Adamu and Ors vs Federal Republic of Nigeria (ECW/CCJ/APP/ 18 of 2018) [2019] ECOWASCJ 33 (19 December 2019)

IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC

COMMUNITY OF WEST AFRICAN STATES (ECOWAS)

HOLDEN AT ABUJA, IN NIGERIA

ON 9TH, DAY OF DECEMBER, 2019

SUIT No: ECW/CCJ/APP/18/18

JUDGMENT No: ECW/CCJ/JUD/33/19

JUSTINA ADAMU                                                 - APPLICANTS

AND

FEDERAL REPUBLIC OF NIGERIA                         -RESPONDENT

COMPOSTION OF THE COURT

Hon. Justice Dupe Atoki                                               - Presiding

Hon. Justice Keikura Bangura                                       - Member

Hon. Justice Januaria Costa                                          - Member

Assisted by: MR TONY ANENE-MAIDOH                        - CHIEF REGISTRAR

JU​DGMENT

Parties

The Applicants are Martha Adamu, Blessing Adamu, Esther Adamu, Mary Adamu, Gabriel Adamu, David Adamu, Moses Adamu and Justina Adamu Community Citizens of Nigerian origin. The Respondent is the Federal Republic of Nigeria and a Member State of the Community.

Subject Matter of the Proceedings

The Applicants are suing for themselves and on behalf of the deceased, their father, Mr. Abutu Adamu pursuant to:

1.        Articles 4, 5 of the African Charter on Human and People’s Rights (ACHPR), violation of the right to life;

2.        Articles 3, 8 of the United Nations Universal Declaration of Human Rights (UDHR);

3.        Section 33 of the Constitution of the Federal Republic of Nigeria.

 The Applicants’ Claim

The Applicants claim that the 1st Applicant was with her father, who is now deceased, on the 26th October, 2010 when their compound in Agwan Rukuba, Jos Plateau was stormed by 10 soldiers on foot following an explosion in the area. That upon entry they started shooting sporadically which resulted in pandemonium. That the deceased was shot by one of the soldiers named Cpl. Aminu.

The Applicants aver that after the deceased had been shot the soldiers retreated save for the soldier (Cpl. Aminu) who had shot the deceased. The First Applicant stated that she confronted the soldier who she believed to have shot the deceased and enquired from him as to why he had shot the deceased. The First Applicant stated that she was joined by a relative who enquired the same thing from the soldier and further copied his name off his uniform. That during this time they held onto the soldier and forbade his retreat.

The Applicants further aver that the nine departed soldiers returned and allegedly hit both the First Applicant and her cousin with the butt of their guns. That after inflicting beatings on them the soldiers took their detained comrade with them.

The Applicants stated that shortly after the departure of the soldiers, a Mobile Police Unit arrived on the scene and took the wounded man (deceased) to the Jos University Teaching Hospital. That the deceased died en route to the hospital due to heavy bleeding sustained from gunshot wounds. That he was certified dead at the hospital and the cause of death was from a primary cause of penetration and a secondary cause of gunshot. That a report was first made to the Nasarawa Gwom Divisional Police Headquarters and was later transferred to State Criminal Investigation Department (C.I.D.) where statements were taken from witnesses.

The Applicants aver that the deceased before his death had warned a certain Corporal Aminu to desist from harassing his daughter, one Martha, but the latter failed to heed his warning.

The Applicants further aver that the death of the deceased has left the family vulnerable to severe mental torture and financial hardship as the deceased who was the breadwinner had been killed.

The Applicants aver that series of complaints have been made by the Applicants to relevant agencies (copies were annexed) but the complaints have not been addressed. That the police have refused to prosecute the unlawful killing of the deceased whose wife died not long after having being knocked down by a vehicle.

The Applicants therefore claim the following reliefs:

1.        A declaration that the unlawful and unjustifiable killing of Mr. Abutu Adamu, the father of the Applicants, by officers of the Nigerian Army, amounts to a violation of fundamental right to life of Mr. Abutu Adamu, the deceased, as contained in Articles 4, 5 of the ACHPR; Articles 3, 8 of the UDHR; and Section 33 of the Constitution of the Federal Republic of Nigeria (as altered).

2.        A declaration that the failure of the Respondent to investigate, prosecute and compensate the unlawful and unjustifiable killing of Mr. Abutu Adamu by officers of the Nigerian Army, is a violation of fundamental human right to life of Mr. Abutu Adamu, the deceased, as contained in Articles 4, 5 of the ACHPR; Articles 3, 8 of the UHDR; and Section 33 of the Constitution of the Federal Republic of Nigeria (as altered) together with the Revised Treaty and all other applicable ECOWAS Protocols.

3.        An order of Court directing the Respondent to compensate the family of the deceased with the sum of N1, 000,000,000 (One Billion Naira).

4.        And for such further or other orders the Court may deem fit to make in the circumstance.

T​he Respondent’s Defence

The Respondent prayed for an extension of time to file their defense and sought the following orders:

a.     A declaration that the Respondent has not breached the fundamental human rights to life of Mr. Abutu Adamu.

b.     An order dismissing the Applicant’s action in its entirety.

c.     An order awarding cost against the Applicant on behalf of the Respondent.

The Court granted the order for an extension of time and proceeded to hear the application on its merits.

The Respondent in its defense stated that there is only one Respondent as is evident from the processes filed. That the events leading up to the death of the said Mr. Abutu Adamu are speculative and puts the Applicants to the strictest proof.

The Respondent stated that their investigations showed that there are no army officers known as Corporal Aminu and Lt. Col. A. Y. Abdul who served on any task force and that the Special Task Force in Angwan Rukuba had no record of any shooting on the 26th December, 2010 as claimed by the Applicant.

The Respondent also denies the events after the alleged shooting of the deceased and puts the Applicants to the strictest proof. The Respondent stated that the Nigerian Police Force investigated the matter and puts the Applicant to the strictest proof as it believes that its agents took all reasonable steps to investigate all the complaints of the Applicants.

The Respondent urges the Court to dismiss the matter as it is frivolous, vexatious, baseless, and incompetent and an abuse of Court process.

Issues for determination

1.   Whether the Court has competence to hear the application.

2.   Whether the Applicants are victims.

3.   Whether the Applicants established the claim of unlawful killing against the Respondent.

4.   Whether the Respondent investigated the allegation of murder contained in the complaint forwarded to it.

5.   Whether the Applicants can bring a claim for compensation in the circumstances.

ISSUE 1: Whether the Court has competence to hear the application.

The Court, as a first criteria, has always addressed its competence in determining an issue before dealing with the substance of the issue.

The Applicants’ claim is for violation of Article 4 and 5 of the African Charter on Human and People’s Rights (ACHPR), Article 3 and 8 of the Universal Declaration on Human and People’s Rights (UDHR) and Section 33 of the Constitution of the Federal Republic of Nigeria. They are claiming two declarations respectively towards the alleged unlawful and unjustifiable killing of Mr. Abutu Adamu (their father) and the failure to investigate, prosecute and compensate for the said unlawful and unjustifiable killing. Further, that the Court grants an order directing the Respondent to compensate the family of the deceased.

The Court notes that pursuant to Article 9(4) of the Supplementary Protocol (A/SP.1/01/05), it “…has jurisdiction to determine cases of violation of human rights that occur in any Member States.” On this note this Court has established, or decided in several cases, that for it to have competence of jurisdiction to determine a matter before it allegations of human rights is key.

The threshold that the Court uses to consider whether an application is properly before it was laid down in the case of MOUSSA LEO KEITA V. THE REPUBLIC OF MALI (2007) ECW/CCJ/JUD/03/07, where the Court held that it has a competence to adjudicate matters involving the violation of human rights within its Member State. Therefore, the threshold that has been set by precedent is that the application need only contain an allegation of a violation for it to be deemed admissible.

Further, in the case of KAREEM MEISSA WADE V. REPUBLIC OF SENEGAL (2019) ECW/CCJ/JUD/13/19, at pg. 259 Para. 95 (3), this Court held that: “…simply invoking human rights violation in a case suffices to establish the jurisdiction of the Court over that case.”

The Court therefore holds that it has competence to hear and determine the application before it.

IS​SUE 2: Whether the Applicants are victims

The Applicants are bringing this action for themselves as beneficiaries and on behalf of the deceased Mr. Abutu Adamu whom they claim is their father. They brought this action pursuant to Article 4 & 5 of the ACHPR on violation of the right to life; Article 3 and 8 of the UDHR; Section 33 of the Constitution of the Federal Republic of Nigeria.

The Applicants claim that they are the children of the deceased. That the death of the deceased had left their family vulnerable to severe mental torture and financial hardship as the deceased was the bread winner and had been killed unlawfully and/or unjustifiably.

The issue here for determination is whether the Applicants are qualified as victims for them to bring this action. In accordance with their claims, firstly as children of the deceased and secondly as dependents of the deceased who had been the bread winner in the family, that the unlawful killing of the deceased has flung the Applicants to financial hardship including they being subjected to severe mental torture.

In considering whether the Applicants are victims under the law, which is Article 10 (d)  of the Supplementary Protocol, the Court will look to existing definitions from the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Survivors of Violations of International Human Rights Law and Humanitarian Law, GA Res 60/147, pmbl, Sec IX, UN Doc A/RES/60/147 (March 21, 2006) which defines it as:

“…anyone who suffers individual or collective harm (or pain) such as physical or mental injury, emotional suffering, economic loss, or generally any impairment of human rights as a result of acts or omissions that constitute gross violations of human rights, or serious violations of humanitarian law norms.”

The European Court of Human Rights also proffered the definition of victim/s, in the case of GROPPERA RADIO AG and others v SWITZERLAND (1990) Application No. 10890/84, as:

“B​y ‘victim’, Article 25 (1) means the person directly affected by the act or omission which is in issue.”

The Community Court of Justice (CCJ) has also in its jurisprudence a definition of victim put forward in the case of AZIAGBEDE KOKOU & 68 Ors . V REPUBLIC OF TOGO (2013) ECW/CCJ/JUD/07/13 @ Page 175 par 24 where it held that:

“To claim to be a victim, there must exist a sufficient direct link between an applicant and the prejudice he deems to have suffered as a result of the alleged violation.”

The CCJ in the case of ODAFE OSARADA v ECOWAS COUNCIL OF MINISTERS, ECOWAS PARLIAMENT & ECOWAS COMMISSION (2008) ECW/CCJ/JUD/01/08 @ 27 held that:

“Generally, and from a legal standpoint the necessity for an Applicant to provide justification of interest in a case is attested by the adage that ‘where there is an interest, there is an action’ and also ‘an interest is the measuring rod for an action’. In other words, an application is admissible only when the applicant justifies that he brings a case before a judge for the purposes of protecting an interest or defending an infringement of such. Such an interest must be direct, personal and certain.”

The Applicants’ claim is for mental torture and physical torture suffered during and as a result of the death of their father by unlawful means. The facts averred are that he was shot whilst in his home by soldiers in front of his children (the Applicants), particularly the First Applicant. The First Applicant, when crossed-examined, further testified on oath that the deceased was her father:

FRANK:   Cross examination.

COURT:  Yes, the respondent.

TARFA:   Yes my lord. You said your name is?

PW2:       Martha Adamu.

TARFA:    Okay, are you the 1st child of the deceased?

PW1:       Yes I am his 1st child. I am the senior, the most senior.

TARFA:   Okay. Sorry, you said this incident happened 9 years ago?

PW2:       Yes. I said December, 2010.

The Court observes that the Respondent did not challenge the capacity of the Applicants as being children of the deceased and indirect victims. In the circumstances and without any evidence to the contrary by the Respondent, the claim by the Applicants being children of the deceased remain substantive.

The facts in the instant case denote relationship; all facts not challenged are deemed admitted, since the Respondent failed to disprove the fact of the Applicants being children of the deceased. The Court finds that the Applicants are indirect victims of the violation of the right to life because they did not suffer the direct deprivation of the right to life.

Having found the Applicants as indirect victims of the violation of the right to life, the Court will briefly reason why they also consider them equipped with the relevant capacity. Pursuant to Article 10 (d) of the Supplementary Protocol grants access to:

“Individuals on application for relief for violation of their human rights; the submission of application for which shall:

i.            Not be anonymous; nor

ii.            Be made whilst the same matter has been instituted before another International Court for adjudication.”

Therefore, what the law demands is that said victims on a claim for violation of their human rights can approach the Court in that capacity pursuant to Article 10 (d). In the case of CENTER FOR DEMOCRACY AND DEVELOPMENT v MAMADOU TANDJA & REPUBLIC OF NIGER (20111) ECW/CCJ/JUD/05/11 @ page 27 the CCJ held that:

“Cases shall be brought before the Court by natural or legal person endowed, within the framework of their national laws, with the required legal capacity, and who, in addition, shall justify their condition of being victim…”

The Court therefore holds that the Applicants are indirect victims who have the requisite capacity, according to law, to bring a claim on their own behalf for the violation of human rights.

IS​SUE 3: Whether the Applicants established the claim of unlawful killing against the Respondent

Generally, the principle of law is that the burden of proving any allegation rests with the person making the allegation. The Court has developed case law with respect to the burden of proof. The burden of proof requirement was settled in the case of FEMI FALANA & ANOR V. REPUBLIC OF BENIN & 2 ORS (2012) ECW/CCJ/JUD/02/12, where it held that “as always, that the onus of proof is on a party who asserts a fact and who will fail if that fact fails to attain that standard of proof that will persuade the court to believe the statement of the claim”. Also, in the case of SIKIRU ALADE V. FEDERAL REPUBLIC OF NIGERIA (2012) ECW/CCJ/JUD/10/12 the Court found that every material allegation of claim must be justified with credible evidence and the defense should also sufficiently satisfy every defense and put forward that will rebut the claim or take the risk of putting nothing at all if the claim by their estimation is weak and unproven.

The duty to prove alleged facts rests with the Applicants. The Court in analyzing this issue will consider the following: evidence of a military presence, evidence of the attire of the assailants, evidence of the mobile police all of which will establish State responsibility and prove or disprove the claim of unlawful killing of the deceased.

The Applicants alleged that they are from Agwan Rukuba, Jos Plateau. The facts as alleged point to a military presence within the immediate vicinity of their home which they aver is close to Dogon Dutse Barracks. They further alleged that soldiers of the Nigerian Army were at this barracks. The Applicant further testified on oath that the barracks was their before the incident that led to the killing of their father:

TARFA: She earlier, my lord she earlier told the Court that the camp, the counsel asked her where the camp was built and as she said it was because of the explosion, that there was an earlier explosion and so the military came.

PW2:    No. the barracks was there long time before the explosion. The barracks has been there before the explosion.

TARFA: Very close to you house.

PW2:     Yes, if you are in the barracks you can see our house.

The Applicants also alleged that the assailants were dressed in military fatigues and carried guns. That one of the assailants (Cpl. Aminu) had shot her father, the deceased, whilst the other (Lt. Col. A. Y. Abdul) had participated in beating her and her cousin Obeya after they apprehended Corporal Aminu who had shot their father. That the assailants, alleged soldiers, had been taken away by their boss who questioned the act of shooting:

TARFA: So you were not even the one that saw the military officers when they came with their boss. You were already unconscious then or at what point where you unconscious? At what point?

PW2:     I said before, by the time I held him and the colleagues wanted to remove him that was the time the boss came when the boss came he started to speak. I heard him when he said why? Why did you shoot? And it was at that time that I lost consciousness and they took me to the hospital.

The Respondent in reply corroborated by way of letter Exhibited as F, Paragraph 25 and dated 3rd November, 2011. The said letter contained a denial that the named assailants, Cpl. Aminu and Lt Col. A.Y. Abdul, were not agents in the Special Task Force. Further, that there was no record of a shooting of the deceased at Agwan Rukuba on 26th December, 2010. They maintained that they had conducted an investigation into the complaint of the Applicants and had come out with a finding.

The Court notes that state responsibility includes the State's power to protect its citizens outside its national boundaries or a State's exercise of its right and duty to do so. Naturally, obligatory rights under international law implies responsibilities which make States liable for their obligations if they are breached, provided the breach is attributable to the state. This makes the State responsible for direct violations of obligations under international law either by its internal institutions, however they are defined by its domestic law; by entities and persons exercising governmental authority; and by persons acting under the direction or control of the state.

In determining the issue, the Court analyzed the principle of states responsibility alongside the facts, i.e. references to military uniforms and equipment; in particular the imposition of a curfew; the conduct typical of security operations, such as the searches of premises and questioning of residents. Further, the Respondent’s corroboration of military operations in the area but had not reported any incidence of unlawful killing concludes therefore, that the area was under military operations. By extension, this area was under state responsibility, therefore a violation occasioned by persons acting under the direction or control of the state against a citizen will render the state liable.

The Respondent, in the instant case maintained that there was State Control over the area but submitted that its agents had no report of the incident resulting in the death of Mr. Abutu Adamu. They denied knowledge of the named assailants and claimed to have conducted an investigation to ascertain the facts as alleged. The Court notes that the alleged unlawful and unjustified killing of Mr. Abutu Adamu by persons alleged to be soldiers/agents, of the Respondent, is supported by a Death Certificate marked and produced as Exhibit B states that the primary cause of death was “penetrating” and the secondary cause of death was “gunshot”. The Respondent did not rebut this fact but said that the incidence was unreported by their Special Task Force. The Court notes however, that the facts denote that the Mobile Police Unit transported the deceased and the first Applicant to Jos University Teaching Hospital where he was certified dead.

The Court recalls that in discharging its obligation the State is required to investigate any alleged violation. The Court notes that the Respondent however, steadfastly claims to have investigated the issue but the Applicants argued that the investigation/s were inadequate and/or non-existent. Whereas the Respondent considered the investigations to have been effective, it still had a positive duty to investigate the alleged criminal conduct even though it enjoys a margin of discretion as to how it complies with that duty. In carrying out this task, it should have an element of scrutiny in the interest of natural justice principles.

The violation of the right to life, pursuant to Article 4 of the ACHPR was eminent after the Respondent failed to conduct an investigation notwithstanding the fact that the Applicants had requested an investigation into the death of a human being, a crime under the extant laws of Nigeria. The African Commission in the case of Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v. Zimbabwe (2012) ACHPR, 295/04 found that Zimbabwe violated articles 1 and 4 (right to life) of the African Charter. While the right to life is not absolute, law enforcement officers are only permitted to kill in self-defense or in the defense of others against the imminent threat of death or serious injury. Use of deadly force must be a last resort. Further, that an act that violates human right laws, even if it is not directly imputable to a state, can lead to international responsibility of the state if the state fails to exercise due diligence in preventing or responding to the violation.

The Court notes that the Applicants and the deceased were attacked; the attack resulted in death and serious grievous bodily harm and mental distress. This should have been recognized and addressed by the Respondent who failed to treat the criminal offence with the severity it deserves. Therefore, the Respondent negligently allowed the violation, warranting liability for failing to adduce relevance to the unlawful and justified killing of a man. The Court therefore finds the Respondent liable for the unlawful killing of Mr. Abutu Adamu and holds that the Respondent violated the right to life of the deceased.

ISSUE 4: Whether the Respondent investigated the allegation of murder contained in the complaint forwarded to it.

Pursuant to its responsibility as a state who has signed and ratified the ACHPR, the Respondent is under obligation to investigate into the allegation of murder that is brought to his attention. This investigation must meet the standards of natural justice principles as was held by the European Court of Human Rights in the case of GUILIANI GAGGIO V ITALY [GC] (2011) no. 23458/02, &303, ECHR; where the Court found that the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case. This Court, in the instant case, notes that whilst the Respondent admitted to mounting an investigation to into the allegation of death, the said investigation was inadequate.

The Applicant specifically pleaded that several complaints were made to relevant agencies of the Respondent about the shooting incidence that resulted in the death of their father but that the complaints were not addressed. They further alleged that the police also refused to prosecute the unlawful killing of their father. The Court notes that up to the time of the Application no such evidence to prove that the Respondent actually investigated and prosecuted those responsible for the shooting that resulted in the unlawful killing of the deceased was established.

The Respondent maintained however, that they mounted an investigation and that their investigation showed that there were no army officers known as Corporal Aminu and Lt. Col A.Y. Abdul who served on any task force. Agwan Rokuba had no existing records of any shooting on the 26th December 2010 as claimed by the Applicants.

The Court therefore holds that the duty of the Respondent to investigate into the murder of the deceased, father of the Applicants, was compromised. This compromise led to a breach of its obligation and a violation of the right to life. The Court therefore holds that the Respondent violated the right to life of the deceased.

I​SSUE 5: Whether the Applicants can bring a claim for compensation in the circumstances

That Applicants alleged that the deceased was the breadwinner in the family, indicating that they were all dependents of the deceased. They further alleged that the death of the deceased has caused them financial hardship and has subjected them to severe mental torture and as such they qualify as victims by reason of the fact of them being dependents of the deceased (their father). The Applicants, having lost their source of support and the state having failed to investigate the allegations, puts the Respondent in a blameworthy situation. The Court is obliged to consider whether the Applicants being found in such a situation as deprivation of support, are entitled to compensation.

The Court notes that compensation in human rights cases is meant to put the claimants in the position that they were before the violation occurred. This is meant to cater for any proven hardships following the violation. In the present case, since the Applicants claim that their support has been extinguished by the demise of their father, who was the breadwinner for the family, it is incumbent upon the Court to consider the justification of their entitlement to compensation or otherwise.

The Court notes that the Applicants had suffered variously since the death of the Mr. Abutu Adamu. Though the Applicants failed to furnish the Court with their respective dates of birth, the facts of the case are that they include children of school going ages, who were deprived from going to school because their breadwinner was killed unlawfully. In her attempt to clarify the issue of date of birth of the Applicants, the First Applicant who herself did not provide documentary evidence in support of her age, during her oral testimony on oath clearly submitted that her birth was unrecorded. The Court recalls that the Respondent never controverted these facts neither in their defense nor during cross examination. It is trite law that, uncontroverted oral evidence on oath concerning any fact in issue in a trial renders the said fact as duly proven and the Court is unfettered to rely on same for its decision. This is particularly so where the credibility of the witness stands not impugned. Consequently, the Court deems that facts specifically pleaded by the Applicants and not denied by the Respondent are deemed to have been admitted.

Having declared that the Applicants are indirect victims clothed with the requisite capacity to bring their claims against the Respondent, and acknowledging that they have suffered irreparable loss, and having been subjected to various degrees of hardship, both present and in future, this Court finds that they are entitled to compensation and the Court so holds.

D​ecision