ECOWAS Court dismisses case by Nigerian alleging discrimination against President Buhari over the appointment of Minister for his state

ECOWAS Court has on 27th of October, 2021 dismissed  the claims in a suit brought by a Nigerian in which he alleged that the failure of a national court to expeditiously hear a  pending case relating to the alleged failure of President Muhammad Buhari to appoint a minister to represent his state as provided in the country’s constitution amounts to the violation of his right to be heard.

In the suit no: ECW/CCJ/APP/24/20 Mr Daniel Mokolo, from the country’s Kogi State,  alleged that the refusal of the President to appoint a Minister from the State to replace the previous one who died in a road accident amounts to the violation of the constitutional provision requiring him to appoint a Minister from each of the country’s 36 States.

The Applicant said that he was forced to file a suit in a national court to compel the President to effect the appointment which was dismissed but ‘stalled at the appeal court’ even though he expected that the matter should attract quick, prompt hearing and determination on the merit within reasonable time. 

He claimed that the Court of Appeal in  Abuja either failed , refused and or neglected to hear and determine the appeal duly filed and briefs settled since 2017 on the merit in violation of section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and Articles 14 of International Covenant on Civil and Political Rights.

He averred that the failure to determine the appeal within reasonable time as well as the adjournment of the appeal sine die violates his right to be heard positing that the Defendant`s judicial system deliberately denied him effective judicial remedy and or justice for an appeal filed on 07/03/2017 assigned suit no: CA/A/131/2017.

The Applicant went further to state that the entire people of Kogi State had no representation in the Federal Executive Council (FEC) meetings under the democratic regime of President Muhammad Buhari for two years after the death of  the former Minister, Barrister James Ocholi on 6th March, 2016 particularly during the mandatory FEC meetings held with the President like all the other 35 federating units that make up the Federal Republic of Nigeria(FRN). 

He alleged that this resulted in the deliberate exclusion of the State from the meetings contrary to the constitution which requires that all states must be represented in the regular constitutional mandatory meetings held to advise, coordinate and determine the activities and the general direction of the government for the purpose of promoting good governance and the welfare of the citizens.

The Applicant said that it was against this background that the Plaintiff wrote a letter on 19th August, 2016 drawing the  President’s attention to the lacuna having become long overdue to which there was no response forcing him to approach  the Federal High Court (FHC) Lokoja, the State capital for an  order to compel Mr. President to perform the Constitutional duty of appointing a minister to represent Kogi State. 

According to him, the Court initially granted the Applicant leave to apply for the Mandamus against the President but his substantive application for mandamus to issue was refused on the 13th December 2016 on the account of insufficient interest to institute the action against the President.

But dissatisfied with the refusal, the Applicant said  he filed an appeal before the Court of Appeal Abuja Judicial Division seeking a judicial review of the refusal on failure of the President to effect the appointment.

According to the Applicant, he filed a notice of appeal on 30/12/2016 which was assigned Case No. CA/A/131/2017 as can be found at pages 154-158 of the record of appeal and entered his appeal at the Court of Appeal, Abuja Judicial Division on 07/03/2017 annexed as Exhibit-1 herein. He subsequently filed his written arguments before the Court of Appeal, Abuja Judicial Division on 23/03/2017 annexed herein as Exhibit 2. 

The Applicant therefore urged the ECOWAS Court for an order compel the Respondent to resuscitate the case by constituting an impartial court to hear and determine immediately the Applicant’s appeal filed on 07/03/2017 assigned suit number CA/A/131/2017 on the merit and an of award the sum of Seventy Five Million United States Dollars ($75,000,000 USD) being damages for violation of his right to be heard within a reasonable time by an impartial court.

But in its defence, the Respondent denied the Applicant’s claim and stated that the officer responsible for the case of the Applicant in the domestic court, one Mr Adebayo Ogundele informed the Applicant that the Court wanted to be addressed on whether it should exercise jurisdiction as the facts that led to the appeal had been overtaken by events and that any subsequent decision would amount to an exercise in futility.

But in dismissing the case at its external sitting in Abidjan, the judges of the ECOWAS Court led by Hon.  Justice Edward Amoako Asante declared that the Respondent is not in violation of the Applicants right to have his cause heard within reasonable time as well as his right to effective judicial remedy as claimed.

While stating that the matter is admissible, contrary to the claim of the Respondent, the Court stated that the Applicant failed to:

provide any concrete evidence to show how he has been denied effective judicial remedy 

based on the records of the Court citing a previous case where it held that ‘  a Defendant is

under no duty to lead contradictory evidence having put a Plaintiff to strict proof

which means that the Plaintiff must produce sufficient evidence to discharge the

evidential burden that rests on him. When he succeeds in doing that, and the

evidence stands unimpeached, the Court will then accept and act on it”. 

The Court also held that to grant the Applicant’s relief under this heading will amount to it sitting on appeal over the decisions of the national court of Member State, a mandate which the Court does not have.

In this regard,  it cited one of its case law where it held that it “has severally drawn a distinction between its lack of jurisdiction to examine the decisions of national courts and its jurisdiction to hear cases of human rights abuses arising therefrom ( and that) the Court has consistently held that it cannot sit on appeal over decisions of national Courts of Member States”. 

Finally, the Court noted that the fact that a party did not succeed with his or her application should not be construed as a denial of fair hearing

Also on the panel are, Hon. Gberi-be Ouattara and Hon. Justice Januaria Costa