50 years after civil war: How ECOWAS Court complicates plight of war victims

The Nigerian civil war which took place from 6 July 1967 to 15th January 1970 devastated the South East and South-South parts of Nigeria. Decades after the civil war, people from the war affected areas are still dependent on the northern part of Nigeria for food items as they cannot access their lands for cultivation of food crops. The war left their land contaminated with explosive remnants of war including life bombs and landmines. Unexploded weapons of war liter the areas leading to death and injuries to unsuspecting residents.

Despite a concerted effort made by the Federal Government of Nigeria in 2009 to clear the area of dangerous explosives, the situation remained almost unchanged. This was at the instance of the United Nations following Nigeria’s signatory to Otawa convention placing a total ban on the use of landmines by member states.

Member states were also required to clear their lands of explosive remnants of war as well as reconstruct damaged infrastructures and rehabilitate and pay compensation to victims of explosive remnants of war resulting from negligence of governments to clear the explosives in good time. The clearance of the area was halted by the Ministry of Defence leading to the residents and victims as well as other residents of the areas embarking on legal battles with the federal government seeking completion of the clearing of the areas and payment of compensation to those that sustained injuries as a result of the negligence.

Though suits were filed for N300 Billion compensation, the Community Court of West Africa [ECOWAS] granted them N88 Billion as a consent judgment after series of negotiations with government lawyers led by Chief Femi Falana, in the case of Vincent Agu & 19 others Vs. Federal Republic of Nigeria & 5 Others, Suit No. ECW/CCJ/APP/06/2012.The judgment which was delivered in 2017 is yet to be obeyed by the same government that consented to the Judgement.

ECOWAS court is a one-stop-shop court and so is not expected to entertain any appeals. The judgment specifically ordered the defendants to pay N50 Billion for the compensation of victims (Plaintiffs) of explosive remnants of war. The consent Judgment also provided for N38 Billion meant for provision of infrastructures in the war affected areas. A special purpose vehicle (SPV) is to be constituted as provided by the judgment to power the development of infrastructures contained in the N38 Billion basket. By the Judgement, it is clearly provided that it is the responsibility of the Ministry Of Defence to constitute the membership of the Special Purpose Vehicle (SPV) as the ministry that handles war armaments and owner of the contracts.

However, officials of the Ministry of Justice are doing everything possible to usurp the function of the Ministry of Defence by taking over by already constituting the SPV membership to the exclusion of Ministry of Defence Officials as well as those who went to Court in the three Suits against the Federal Republic of Nigeria. However, the Defendants who lost in the matter including the Federal Ministry of Justice are fronting themselves to direct and superintend over the execution of the court Judgment.

While the Ministry of Justice hijacked and assumed the sole responsibility of constituting the membership of the SPV, the Ministry of Defence is on the war part with the Justice Ministry trying to reclaim what originally belongs to them. Meanwhile the payment suffers and the victims continue to die in their numbers. It is believed that it is the Justice ministry that influenced the ECOWAS Court not to Gazette the Judgment as it is their rule thereby giving an opening for all and sundry to file applications for joinder and delay the execution of judgment. All sorts of cases have emanated believed to be sponsored in proxy by Justice Ministry officials to delay execution of the Judgement. It is being alleged that the Federal Ministry of Justice has gone as far as recruiting claim Agents to act as Judgement creditors and receive the Judgement benefits. They have also recruited Traditional Rulers and some questionable members of these beneficiary communities to form claim Agents and committed them to sign an agreement ceding 33percent of whatever amount they receive to claim Agents.

On their part, some Ministry officials are alleged to have undertaken to get the ECOWAS Court to create the enabling loopholes to perfect their plan. The Judgement which was delivered on 30th October 2017 was to be executed within 45 days from the date of Judgment and that the judgment should be published by the ECOWAS Court on their community journal as contained in Article 91 of the rules of ECOWAS Court; but the court created the lapses by not publishing it till date.

Secondly, upon the delivery of ECOWAS Court Judgment, the Chief Registrar of ECOWAS COURT is enjoined by Rules of the Court and the protocol to submit the writ of Execution to the National Authority of the member state in this case the Federal Ministry of Justice in order to facilitate payment in the case of monetary Judgement. The Registrar of ECOWAS court did not do this. The Registrar neither submitted nor Published the Judgment within 3 months as required by the Rules of the Court. With that loophole created; third Party applications numbering up to thirteen flew into the Court and the court made an order consolidating them and went further to direct the Third Party Applicants to come up with a new and consolidated application which is contrary to the law and principle of consolidation.

Despite the court’s directive to the Registry of the Court on 3rd February 2020 to stop the collection and filling of new Third Party Applications the Registry continued to admit the Applications.

It is sad that the Applicants in the suit went to ECOWAS Court to evade the Nigeria factor but the court is alleged to be immersed in the practices that everything but fair and that are tended towards denying the Victims (Judgment Creditors) the fruits of their Labour and from the way things are going it does appear the Federal Republic of Nigeria is regretting having agreed to pay compensation by manipulating the ECOWAS Court Proceedings through Ministry of Justice. In fact, it is like the Federal Ministry of Justice officials have concluded arrangements on how to share the money; and from investigations, are waiting for the ECOWAS to vary the consent Judgment and throw up a new or second consent Judgement. Notwithstanding the nature and form of Agreement between the Plaintiffs and Third Party Applicants in order to facilitate access to the Judgment sum.

The suit was filed by Plaintiffs in a representative capacity covering real victims, families and the communities where they come from. Now it is amazing that the said Third Party Applicants who have been covered by the original suit are being heard by an International Court of final jurisdiction on the Application of those who were supposedly represented years after Judgement has been delivered in the case.

Having delivered Judgement on the case on 30th October 2017 by a court whose rules prohibits receiving applications on a matter any time above 3 months from the date of the publication of the Judgment in the OFFICIAL JOURNAL OF THE ECOWAS COURT, the court is not expected to admit applications in 2018, 2019, 2020 and further unless it has a special interest in the new cases. Ten out of about Thirteen Third Party Applications were filed in 2020 as against the provision of Ecowas Court Rules. The Third Party Applications, were all filed out of time going by the Rules of the Court and yet the Court went ahead and consolidated all the Thirteen THIRD PARTY APPLICATIONS just to create loopholes.

It has become apparent that the ECOWAS Court has descended into the arena of the conflict between 3rd Party Applicants and the Plaintiffs i.e. the victims that went to Court by the Hon. Court’s clear show of bias in favour of the Federal Government of Nigeria represented by their officials. The body language of the government officials show clearly that they sourced the Third Party Applicants to delay or to deny the payment of the Judgement sum to the Victims who are predominantly Igbos unless the Justice Ministry Officials are allowed to decide who gets what.

In the last sitting of the Court held on Tuesday 23rd March 2021 the lawyers for the Plaintiffs Prof Paul Ananaba SAN and Paul Ogbole SAN (TP3) lawyers to Third Party Applicants informed the Court that there has been an agreement between the original Plaintiffs on record and the Third Party Applicants regarding the issue of accommodating the Third Party Applicants in the sharing or distribution of the N50 Billion meant for the compensation of victims. By the proceedings a document has been prepared and sent to the Attorney General of the Federation and Minister of Justice for his signature. However up to that day no feedback had been received from the office of the Attorney General (AG). The two senior Advocates of Nigeria argued that in the absence of the Attorney General (AGs) endorsement of the document as agreed between the Plaintiffs and the Third Party Applicants should be adopted as terms of their agreement between them in consonance with the leave of Court earlier granted the Plaintiffs and the 3rd Party Applicants to settle out of Court. More so as the lawyer that represented the Federal Government of Nigeria that day Femi Adedeji Esq. clearly informed the Court that since there was an agreement between the original Plaintiffs and the Third Party Applicants, that the Federal Government of Nigeria will honour the agreement as entered into between the parties and that there is no need to wait for the signature of the AG. This position was vigorously canvassed by FGN lawyer Adedeji and that of the Plaintiffs Paul Ananaba but to the disappointment of members of the Public, the Hon. Court insisted that the Federal Government must endorse the agreement before the Court proceeds with the certified True Copy of the VERBATIM REPORT of the ECOWAS Court proceedings of the 23rd March, 2021, the Lawyer for the Federal Republic of Nigeria BARR. Adedeji said “My Lord, it will suffice if they can agree with themselves as they have done and not waiting for the Federal Republic of Nigeria to be a part of this settlement at this and My Lord, we have a responsibility to advice our clients, when that time comes as to what to do with the terms of settlement which has become the Judgement of the Court. So apparently there is no compulsion from the end of the Federal Republic of Nigeria to be a signatory to that settlement so we are just urging the Parties that are intending to settle to execute the documents, we are going to advice the Federal Republic of Nigeria to respect whatever their decision is”.

In support of the Federal Republic of Nigeria lawyer, the Plaintiffs’ lawyer Prof. Ananaba SAN said “My Lord, I believe that what my friend Oluwafemi told this Court is my position and is the correct position to my mind. We don’t need the Federal Republic of Nigeria to sign in a settlement between us and the Third Party Applicants and that is why in the last two adjournment, we tried to persuade the Court on that so right here and now, I urge you; Lordships to enter these terms, the ones we have already filed as between the Plaintiffs and the Third Parties alone, as agreement between them with respect to their application. My Lord, Sir I was just saying that Mr. Oluwafemi is totally correct”.

The Court’s outburst at this passionate observation and appeal by the Plaintiffs’ lawyer Prof. Ananaba SAN though unnecessary speaks volumes as to the leaning and direction of the Court. “We heard whatever you said you didn’t need to repeat what you said”. Even at that the Learned Senior Advocate humbly continued to make his position clear by saying thus “sorry sir, we just urge your Lordships, very sorry Sir, very humbly saying sorry Sir, that your Lordships should adopt these settlement as between the initial Plaintiffs and the TPs. That is all and then this matter comes to an end otherwise we will keep waiting for them and to make the point clear, they will respect the settlement between us and the TPs so that this matter can come to an end so we don’t begin to see more Applications and more delays. I am grateful Sir”.

In spite of all these the Court insisted that the Agreement entered into by the Plaintiffs and Third Party Applicants must be endorsed by the Federal Republic of Nigeria when in fact none of the Original Defendants filed any Counter-Affidavit challenging Third Party Applications Moreover, the RULES of Court did not approve such practice. Therefore, why should the Court insist on having parties that filed no Counter-Affidavit endorse the Agreement? Is this Justice?

Another point of note where it is apparent that the Hon. Court appears to have deeply descended into the arena of the conflict in the last proceedings of the Community Court of Justice ECOWAS on 23rd March 2021 is also found in respect of Judgment sum of N50 billion allocated for compensation of the victims of explosive Remnants of War and the N38 Billion for demining and provision of infrastructures in the Nigeria Civil War affected areas. The Court had on that day clearly raised the issue of special purpose Vehicle (SPV) of N38 Billion by itself without any of the lawyers of the Plaintiffs or the Third Party Applicants or Federal Republic of Nigeria Lawyer raising it. The Judgment of the Court delivered on 30th October 2017 clearly provided that N50 Billion was for the compensation of the victims (Plaintiffs) who went to Court to seek compensation while N38 billion is for development and infrastructure. However, the Nigerian member of the Panel of judges regrettably interjected in the ruling delivered on March 23, 2021 somersaulting the consent Judgement and said instead that the SPV CONTAINED IN THE ORIGINAL Judgment is now to be set up in respect of the N50billion meant for the victims and not for the N38 billion as earlier delivered in the Judgement without any lawyer raising the issue and addressing it for consideration all through the proceedings.

The Court reversed and altered the consent Judgment on its own when the Case did not go on trial. Hear the Court: “Now we have also looked at the file and it is clear that by the first consent Judgment, Nigeria was to create a platform as a vehicle as means of paying the Judgement debt to the Plaintiffs who were identified then in the action with the involvement of the Third Parties here, this second consent Judgment that is being sought to be signed, it is very clear that Nigeria has to amend its ways by setting up, involving them in the vehicle that is to be created. This is the platform that will be created for the payment of the amount to the Parties …. To be paid as increase by the members of the Third Parties therein. Having been part of the first Consent Judgement in our view, we think that Nigeria should be a necessary Party to this for enforcement purposes, Nigeria obviously cannot refuse to sign but they have to, their consent ought to be in this agreement that is being made and we think Nigeria is a necessary party that must sign this agreement and therefore, we rule that Nigeria is a party that must sign to give effect to the entire agreement based on the consent Judgment that has been obtained and therefore that is our ruling”. Now, we ask: which Consent Judgment? How is the Court concerned in the enforcement of Judgement at this stage when nobody has applied to it for enforcement purposes? Is this Justice?

At various times in the proceedings the Court on its own mentioned “Second consent Judgement” as if there are first and second judgments. However the agreement of the parties, Plaintiffs and Third Party Applicants which the Court is now forcing the Federal Republic of Nigeria to sign does not amount to a Judgment as there cannot be two Judgments in a Suit in the same Court. What the Plaintiffs and the Third Party Applicants have agreed to do does not amount to the cancellation of the Judgement of the Court but rather an addendum. But the Court is nearly almost varying its Judgement without conducting any hearing. How come the Court is suddenly varying its own Judgement? Without conducting trial or hearing. Going by the above, it does appear the Hon. Court has concluded and pronounced Judgment already.

The above clearly shows how the Hon. Court on its own altered the Judgment well ahead of time, thereby granting the Third Party Applicant’s all the prayers sought by them as well as purposefully creating loop-holes for Federal Ministry of Justice Officials to balkanise the money. Whether the United Nations would still refund Nigeria the sum of N50billion as provided by the Ottawa convention remains unknown.