Court declares itself competent to hear relisted suit by staff challenging his termination by ECOWAS

The ECOWAS Court has dismissed the preliminary objection of the ECOWAS Commission and its president, challenging the competence of the Court to re-entertain a suit with the same parties and on the same subject matter brought by a Community Staff challenging the termination of his employment.

Justice Edward Amoako Asante, the judge rapporteur who delivered the ruling of the Court, declared the Court competent after hearing the submissions of both parties regarding the preliminary objection raised by the Respondents – the ECOWAS Commission and its president, and ordered the Respondents to file their defence within 14 days.

In their preliminary objection, the Respondents had argued that the Court lacks the jurisdiction to entertain the Applicant’s application for relisting of this case and had accepted the striking out of the matter before the Court sometime last year.

But the Court held that “a close reading of Article 73 of the Rules of Court reveals that any order made in addition to the removal from the suit from the register of the Court where an Applicant applies for discontinuance, is a matter of judicial discretion after the consideration of the grounds for the application and submissions or observations, if any, made by the Respondent.

“The effect of an application for discontinuance contemplated under Article 73 of the Rules is that it ends the suit and the court is entitled to formerly remove the case from the register of the Court but does not take the right of the Applicant in re-litigate the issue if necessary.

“The court has no jurisdiction to refuse the discontinuance of a suit because upon informing the Court in writing of the intention of the Applicant to discontinue the proceedings, the Rules mandate the Court to order the removal of the suit from the register of Court.

In the initiating application with suit no. ECW/CCJ/APP/22/19 filed on 13 May 2019 Mr Suleiman Muhammad Hussaini brought the Respondents before the Court alleging that the failure of the Respondents to implement the provisions of its Staff Regulations violated his rights to fair hearing, to have his case heard and the presumption of innocence.

The Applicant also claimed that the action also violated his right to equality before the law, equal protection before the law and the dignity of the human person as guaranteed under the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights, and Constitution of the Federal Republic of Nigeria.

Mr Hussaini, who was represented by his lawyer, Mr Kolawole Olowookere, averred that he was recruited through a competitive process as controller under the office of the former Financial Controller of the ECOWAS Commission on a permanent staff category on a one-year probation effective 1 June 2016.

He contended that although he did not receive any query during the probation period and received an excellent evaluation, he was not issued a confirmation letter, and upon enquiry, he was informed that the former president of the Commission ordered his exclusion from the list of confirmed staff citing his indictment in a financial malpractices’ report submitted to the Commission by Nigeria’s anti-corruption agency – Economic and Financial Crimes Commission (EFCC).

He added that though he was invited by the anti-corruption agency, it was to give an explanation on instalmental payments he made into his boss’ account on his instruction for the purchase of plots of land.

He averred that he was neither notified of his indictment nor given an opportunity to defend himself of the allegations, neither has he been invited to face any disciplinary committee in line with the provisions of the ECOWAS Staff Regulations and the ECOWAS Revised Treaty. 

Consequently, he alleged he was a victim of discrimination and abuse of the extant laws of the Community by the Respondents as expressed in the manner his employment was terminated.

He urged the Court among others, to declare the Respondents’ action as null and void and order his reinstatement as well as the payment of his arrears of salaries and allowances in addition to the payment of 1 million USD for the infringement on his fundamental rights.

In a preliminary objection filed on 7 June 2019 by Mr Eric Ibe lawyer representing both Respondents, he challenged the jurisdiction of the Court to entertain the matter he described as earlier struck out and presently relisted based on an application filed by Mr Hussaini, arguing that the Court lacked jurisdiction to hear it pursuant to Article 73 of the Rules of the Court.

In his response, While Mr Olowookere argued that the matter was struck out earlier without being heard on its merits thereby qualifying it for relisting in the interest of justice as provided for in Article 73 of the Rules of the Court.

Also on the panel were Justices Dupe Atoki, and Januaria Costa.