The Community Court of Justice ECOWAS has ordered the Government of Cote d’Ivoire to pay more than $2.21 million (1,250,000,000 CFA Francs) as compensation to Mr Oumar Diawara, a Congolese resident of Abidjan (the Applicant), for the violation of his right to a fair hearing and right to property.
A symbolic one Franc was also awarded to him for the moral prejudice he suffered from how the case against him at the domestic court was handled.
In the judgment, which was delivered by Justice Dupe Atoki, the Judge Rapporteur in the suit, the Court also ordered the Court’s Registry to assess the litigation costs in favour of the Applicant.
In a suit filed through his lawyers, Mrs Geraldine Odehouri-Koudou and Mrs Esther Dagbo, the Applicant alleged that the Ivoirian Government violated his right to property and fair hearing by depriving him of his right to defence, equal protection of the law, equality before the law and right to be tried by an impartial tribunal.
In the application, Mr Diawara said that his company, Societe Ivoirienne de Depots Douane (SIDD), in July 2017 acquired a real estate and construction company – Perl Invest from a partially state-owned company – BNI Gestion, after which he discovered irregularities in the assets and liabilities of Perl Invest, including under-reported assets and 15 billion CFA francs loan misappropriated by directors of BNI Gestion to the detriment of Perl Invest.
He stated that he filed a complaint and the judge of the 9th Investigating Chamber of the Court of First Instance of Abidjan heard all parties and witnesses at the end of which the matter was abruptly transferred to the judge of the 5th Investigating Chamber without informing him contrary to the provisions of the law.
Thereafter, he said the Minister of the Economy and Finance intervened to settle the matter through mediation but a change in leadership occurred before the signing of a Memorandum of Understanding (MoU) which was stalled without any explanation.
He further told the Court that by an Order dated December 17, 2018, based on a complaint by the Law Officer of the Treasury, the Judge of the 5th Chamber prohibited real estate transactions on his acquired company – Perl Invest, without giving him prior opportunity to be heard.
He later found out that the complaint bordered on money laundering and misuse of public assets against him.
He also alleged that the actions of the judge of the 5th Chamber indicated bias and impartiality, due to her refusal to release the case file after her removal from the case; her refusal to transfer the case file to the public prosecutor’s office and refusal to allow the Applicant’s lawyer to access the case docket which stalled the appeal process for about two years.
Consequently, he asked the Court to hold the State of Cote d’Ivoire liable for violating his rights to fair hearing and property and order the payment of compensation totaling 15 billion CFA Francs as well as one symbolic Franc for moral damages.
In a counter argument, the government represented by Mr Cyprien Essin told the Court that BNI Gestion is an affiliate of a Government company and the State through its Law Officer of Treasury had competence and grounds to file charges of money laundering and misuse of corporate assets against Mr Diawara.
On the issue of the change of judge, Mr Essin said a case transferred to another judge can be reassigned back to the judge to continue with the proceeding and therefore urged the Court to dismiss the claims of Mr Diawara as unfounded.
He also urged the Court to dismiss Mr Diawara’s application for interim measures to stall all restricting orders and those to be made as the application and orders sought have been overtaken by events.
After hearing the Parties and analysing both the interim application and the merits of the case, the Court dismissed the Applicant’s request for interim measures, same having been overtaken by events.
On the merits, the Court held that the Ivoirian government violated the Applicant’s rights to a fair hearing by failing to avail him of the opportunity to defend himself before pronouncing the Order; by denying him right to be tried by an impartial court or tribunal, and by denying him the right to appeal as provided for in Article 7 (a) (b) (c) of the African Charter on Human and Peoples’ Rights (ACHPR) respectively.
It, therefore, held the government liable for violating Mr Diawara’s right to property due to the irregular proceedings at the domestic court, which allowed the unlawful deprivation of his property contrary to Article 14 of the ACHPR.
Consequently, the Court awarded compensation for violation of Mr Diawara’s rights to property and the moral prejudice he suffered but dismissed all other claims by both parties.
The judgment was delivered during the ongoing two-week external session of the Court being held in Abidjan, Cote d’Ivoire.
Also on the panel of judges for the suit were Justices Gberi-Be Ouattara (presiding) and Januaria Costa (member).