32 (4) of the Rules of this court renders the Application devoid of a cause.
The Court observed that there is no reference in the applicants’ Initiating
Application to instruments (documentary or physical) as evidence to be
relied upon to establish their case. The purpose of annexing instruments to
pleadings is for the purpose of notice. Where no such instruments are
pleaded, the Court does not see how the right of action of the applicants
can be defeated by not annexing such non-pleaded instruments to the
pleading. This Court says that the soul of the law is reason. Where reason
ceases, there too must the law ceased.
6.1.8. Or is it the position of the defendant that in the event that a party who
believe that a human right violation has been committed against him cannot
institute an action in the absence of documentary evidence, even though
his case may be established by oral evidence? This Court held in the case
Bakary Sarre vs. The Republic of Mali (unreported) Suit no.
ECW/CCJ/APP/09/09, that the competence of the Court to adjudicate in a
given case depends not only on its texts but also on the substance of the
initiating application. The Court accords every attention to claims made by
applicants, the pleas-in-law invoked, and in an instance where human
rights violation is alleged, the Court equally consider how the parties
present such allegations. The Court therefore looks to find out whether the
human rights violation as observed constitutes the main subject matter of
the application and whether the pleas-in-law and evidence produced
essentially go to establish such violation.
6.1.9. Article 9 (4) of the Supplementary Protocol (A/SP.1/01/05) Amending the
Protocol (A/P1/7/91) of the Community Court of Justice confers upon this
court the “jurisdiction to determine cases of violation of human rights that
occurs in member states”. The self-same Supplementary Protocol also
provides at Article 10 (c) that “(A)ccess to the Court is open
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”.
6.1.10.
The court in fulfilling its human rights competence relied upon
Article 4 (g) of the Revised Treaty which provides for the declared and
affirmed adherence by member states to the “recognition, promotion and
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