Case of Ghaby Kodeih vs Republic of Benin
On February 14th, 2020, Mr. Ghaby Kodeih filed an application instituting proceedings against the Republic of Benin concerning alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its articles 7-1 ( a), 7-1 (d) and 14. Indeed, he claims that a seizure procedure relating to a building belonging to the company SHRL of which he is the sole proprietor has been initiated by the Société Générale du Bénin (SGB). Said bank was part of a consortium which lent the company SHRL a large sum which was to be used for the construction of a hotel. The credit agreement had been materialized by notarial deeds initially signed by all the parties involved on November 13th and December 16th, 2014. An amendment to this deed had been concluded which involved a mortgage on an undeveloped building of the borrowing company with a surface area of ‘one hectare 54 ares and 34 centiares.
The applicant maintains that following complications, the SGB had unilaterally denounced the agreement and requested the reimbursement of part of the sum by order to pay for the purposes of foreclosure. The bank had also taken legal action in Benin to sell the building that was the subject of the seizure. By judgment dated December 19th, 2019, the Cotonou Commercial Court granted this request. On January 30th, 2020, the Court pronounced the adjudication of the SHRL building in favour of SGB for the asked price.
Mr. Kodeih maintains that the judgment of December 2019 rendered as a last resort contravenes the Uniform Act relating to Simplified Recovery Procedures and Measures of Execution (UA-SRPME) insofar as the remedies are not completely exhausted. By denying him the right to appeal this decision, the State of Benin allegedly violated Mr. Kodeih’s rights protected by the Charter and thus justifying the referral to the Court.
The applicant had filed at the same time as the initial application a request for the indication of provisional measures tending to halt any transfer of land title and dispossession of the building subject to the dispute, before the Court ruled on the merits of the case.
The African Court on Human and Peoples’ Rights ruled on these points in its Order of February 28th, 2020. It recalled that it could only order provisional measures when the conditions contained in article 27 ( 2) of the Protocol establishing the Court were met. After examining the facts, it concluded that the situation did indeed have the characters of extreme gravity or urgency and the risk of irreparable damage to the person and decided that the Beninese justice could not proceed to the adjudication of the claimed building mortgaged as long as the Court had not rendered its judgment on the merits.
On March 25th, 2020, the Republic of Benin withdrew the Declaration under which Benin accepted the jurisdiction of the Court to hear cases filed by individuals and non-governmental organizations. There was therefore a legal question regarding the fate of all the current cases not yet decided.
In its judgment of September 30th, 2021, the Court clarified that this withdrawal had no impact on pending cases and on new cases referred to it before the entry into force of said withdrawal, i.e. on March 26, 2021. It then proceeded to check its jurisdiction to rule on this dispute and concluded that it could indeed render a judgment. It then examined the objection of inadmissibility of the complaint raised by Benin.
The Respondent State maintains that the Applicant had not exhausted all domestic remedies, which was a prerequisite for referral to the Court (Article 50 (2) (e) of the Rules of Court) in so far as where Mr. Kodeih had lodged an appeal before the Cotonou Court of Appeal on December 31st, 2019 and an appeal before the Common Court of Justice and Arbitration (CCJA) on February 26th, 2020. Without waiting for the fate of these proceedings, the applicant appealed to the African Court on Human and Peoples’ Rights. Mr. Kodeih replied that the lack of independence of the Supreme Judicial Council left him little confidence about the impartiality of the procedure and that the appeal to the CCJA was not an internal appeal within the meaning of Article 50. (2) (e) of the Rules of Court.
The latter concluded that the appeal to the Cotonou Court of Appeal was irrelevant in the present case. However, the African Court on Human and Peoples’ Rights noted that it was seized a few days before Mr. Kodeih brought his appeal before the CCJA. In these circumstances, the applicant should have waited for the CCJA to deliver its judgment before initiating new proceedings. In addition, the action before the CCJA met the conditions listed in Article 50 (2) (e). It is indeed a domestic, ordinary and effective remedy. Consequently, Mr. Kodeih’s application before the African Court on Human and Peoples’ Rights was inadmissible for failure to exhaust domestic remedies.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.
