in different courts, and as such, their action before the ECOWAS Court of Justice
does not amount to abuse of court process or estoppel res judicata.
The Court therefore considers that its duty is to examine whether the two suits
have the same subject-matter. It is apparent, in that regard, that if the facts in
issue remain incontrovertibly the same, the substance of the actions filed before
court greatly differ. The Plaintiff's action before the judge in the domestic courts
of Nigeria was to seek criminal investigation and prosecution of the alleged
killers and compensation for the loss of their breadwinners, whereas the object
of matter before the ECOWAS Community Court of Justice is to ask the Court to
find that there is an occurrence of human rights violation, and to seek reparation
for the harm done, if the Court should so find.
The texts relied on in pleading the two cases are equally different.· Before the
national courts of Nigeria, the request sought application of the provisions of
the domestic criminal law of Nigeria, whereas before the ECOWAS Court, the
request was to urge the Court to find an occurrence of the alleged human rights
violation, essentially derived from the African Charter on Human and Peoples'
Rights, which Nigeria is party to.
The two proceedings thus instituted are therefore independent of each other;
they do not overlap, and one cannot be confused for the other. Similarly, the
Court is of the view that in entertaining the instant case, the Community Court
of Justice, ECOWAS is not acting as an appellate court, since the case filed before
it does not have the same substance as the suit filed before the judge in the
domestic court of Nigeria. The concept of "appeal" presupposes that the same
case is transferred to a higher court, so as to adjudicate on the same facts and
to examine the same arguments of the parties; but such is not the case here.
The Court thus holds that the thesis that the two suits are totally identical,
cannot be upheld; and hence, the Court holds that the Plaintiff's right to bring
their case before the ECOWAS Court of Justice cannot be contested. For that
reason, the Court rules that the preliminary objection thus raised by the
Federal Republic of Nigeria is ill-founded, and the Court receives the action
brought by the Plaintiff as admissible.
B- Legal capacity of Plaintiff for bringing an action on behalf of deceased
persons
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