78. This Court captured the imperatives of these safeguards when it held that;
“Article 7 (1) clearly states that every individual shall have the right to have his
cause heard and this comprises among other things the right to be presumed
innocent until proven guilty by a competent Court or tribunal, (Emphasis ours)
the right to defense, including the right to be defended by counsel of his choice
and the right to be tried within a reasonable time by an impartial Court or
tribunal.” See CHIEF EBRIMAH MANNEH v. THE REPUBLIC of THE GAMBIA.
ECW/CCJ/APP/04/07, CCJ p. 191, para. 21.
79. This same understanding is reflected in the decision of the African
Commission which ruled that:
“….the right to be heard requires that the complainant has unfettered access to
a court of competent jurisdiction to hear his cause. It also requires that the matter
be brought before a court with the competent jurisdiction to hear the case.”
Emphasis ours See Communication No. 313/05 Kenneth Good v. Botswana
80. The issue to be determined therefore is whether the Committee is competent
within the context of Article 7 of The Charter. It is a general principle of law that
the burden of proving the existence or non- existence of a fact is on the party who
asserts. Confirming same this court held that;
“…as a general rule, the burden of proof lies on the Plaintiff. If that burden is
met, the burden then shifts to the Defendant, who now has to plead and prove any
defence by a preponderance of evidence”. In FESTUS A.O. OGWUCHE v. FEDERAL
REPUBLIC OF NIGERIA ECW/CCJ/JUD/02/18
81. In the instant case, the Applicant did not adduce any evidence to support his
allegation on the irregular composition of the Court, but he put the Respondent
on notice to produce the record of proceedings of the investigation. The
internationally recognised rule of Evidence is that to the extent that it is
impossible or impracticable for the party to have recourse to a relevant document
which is in the custody of the adverse party and also to the extent that the said
adverse party has been put on notice to produce but failed, the party serving the
notice is entitled to adduce secondary evidence of the document in question. See
THE REGISTERED TRUSTEES of JAMAM’AH FOUNDATION Vs FEDERAL REPUBLIC
OF NGERIA No. ECW/CCJ/JUD/04/20
82. The court notes that the Applicant not been the originator of the said record
of proceedings and thus not the natural custodian of same, neither are they public
documents per se to which he can apply for certification puts him in an impossible
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