153. The Court recalls that, as it has previously held, that the loss of opportunity
implies the deprivation of a potential with a reasonable probability of
occurrence and not a certainty. It must be established that the harm suffered
nullified the probability that a positive event will occur …”.26 In the instant
case, the Court found that by obstructing the payment of the Applicants’
claim, the Respondent State violated their right to execution of a court
decision guaranteed in Article 7(1)(d) of the Charter.
154. The issue here is whether there was evidence, or at least indications, that
the Applicants actually intended to invest or bank the amount awarded them
by the domestic courts for loss of customary rights.
155. The Court notes that to justify the alleged harm, the Applicants merely
assert that they would have invested the sum of Eight Hundred and Twelve
Million Four Hundred and Eighty-eight Thousand (812,488,000) CFA
Francs in profitable ventures such as real estate development, without
proving whether in the interval between the Supreme Court’s decision in
2009 and the day of referral to this Court they developed or designed an
investment plan that was likely to be profitable.
156. The Court further notes that the Applicants submitted a list of thirteen (13)
of their family members who died while awaiting payment of the claim
without ever enjoying their share of their family entitlements. It follows from
this assertion that even if the Applicants had been paid the compensation
amount awarded for loss of customary rights, it is unlikely that they would
have invested or banked the entire amount. However, the Court considers
that the possibility of investing at least part of the claim, even if not certain,
exists with a reasonable probability of occurrence.
157. In view of these findings, the Court considers that in the present case, the
Applicants are entitled to reparation for loss of investment opportunity.
26
Sébastien Germain Ajavon v. Republic of Benin (reparations) (2019) 3 AfCLR 196, § 56.
37