CHAIRPERSON: Salimata Sawadogo
VICE CHAIRPERSON: Yassir Sid Ahmed El Hassan
COMMISSIONERS: Mohammed Abdulahi Ould Babana, Andrew R Chigovera,
Vera M Chirwa, E.V.O. Dankwa, Angela Melo, Jainaba Johm, Sanji
Mmasenono Monageng, Bahame Tom Mukirya Nyanduga, M. Kamel Rezag-Bara
||Odjouoriby v. Benin, Comm. 199/97,
17th ACHPR AAR Annex VI (2003-2003)
||Documents of the African Commission
on Human and Peoples’ Rights, Vol. 2, at 580 (Malcolm D. Evans &
Rachel Murray eds., 2009); (2004) AHRLR 15 (ACHPR 2004)
22nd Session: Commissioner Nguéma
23rd Session: Commissioner Nguéma
24th Session: Commissioner Nguéma
25th Session: Commissioner Nguéma
26th Session: Commissioner Nguéma
27th Session: Commissioner Nguéma
28th Session: Commissioner Nguéma
29th Session: Commissioner Nguéma
30th Session: Commissioner Sawadogo Salimata
31st Session: Commissioner Sawadogo Salimata
32nd Session: Commissioner Sawadogo Salimata
33rd Session: Commissioner Sawadogo Salimata
34th Session: Commissioner Sawadogo Salimata
35th Session: Commissioner Sawadogo Salamata
SUMMARY OF FACTS
1. The Complainant is a national of Benin who alleges violation of his
rights by the judiciary of his country.
2. It is alleged that the Appeal Court of Cotonou refused to restore his
rights in a case pending before the said court since 1995 which sets him up
against Mr. Akitobi Honoré whom he accuses of having despoiled him of his
real estate property with the complicity of some judges.
3. The Complainant considers that the attitude of the Appeal Court
constitutes a denial of justice.
4. The Complainant alleges violation of Articles 7 and 14 of the African
5. The Secretariat of the African Commission acknowledged having received
the communication on 8th April 1997.
6. The African Commission was seized of the communication at its 22nd
ordinary session and deferred its decision on admissibility to its 23rd
ordinary session scheduled for April 1998.
7. During its 23rd session held from 20th to 29th 1998 in Banjul, The
Gambia, the African Commission declared the communication admissible and
deferred consideration of the merits of the case to its 24th ordinary
8. On 1st June 1998, a note was sent to the Government of Benin informing
them that the communication had been declared admissible by the African
Commission, pursuant to Article 56 paragraph 5, and that the Commission
would rule on the merits during its 24th ordinary session scheduled for
October 1998. A letter with the same message was sent also to the
9. During the 28th Ordinary Session, the African Commission heard both
parties. Through its representative, the Respondent State asked the African
Commission to review its decision on admissibility as the Complainant had
not exhausted local remedies.
10. The African Commission, noting that the Complainant had not put his case
across logically, advised some NGO’s to assist him. To this end, the case
was entrusted to Interights and to the Institute for Human Rights and
Development in Africa on behalf of the Complainant.
11. In any case, the African Commission took note of the undue delay of the
Complainant’s case before the courts.
12. From the submissions, it became apparent that in a civil case like this
one, the conduct of proceedings is the responsibility of the parties in the
case. The appeal filed against the judgment of the court of first instance
is dated 19th September 1995 and the Commission was seized of the case on
8th April 1997, that is 20 months after the filing of the appeal. It appears
from the practice of the Appeal Court accepted by the Supreme Court that
average period ranges between 4 and 5 years.
13. The African Commission upheld its decision on admissibility and deferred
its decision on the merits to the 30th Ordinary Session held in Banjul, The
Gambia, from 13th to 27th October 2001.
14. The communication was deferred on several occasions because the
Complainant was not very familiar with the procedures of the African
15. The African Commission considered this communication at its 35th
Ordinary Session held in Banjul, The Gambia and decided to deliver its
decision on the merits.
16. Article 56 of the Charter provides, among other things, that
communications shall be considered by the Commission if they:
(5) “are sent after exhausting local remedies, if any, unless it is obvious
that this procedure is unduly prolonged”.
17. Odjouoriby Cossi Paul (the Complainant) claims that the case opposing
him to Mr Akitobi Honore has been pending before the Appeal Court of Cotonou
since 19th September 1995 and that up to now the Court has delivered no
18. And yet, it is obvious that the local proceedings will remain in impasse
as long as the Appeal Court has not made any ruling on the appeal pending
19. The African Commission has moreover established the evidence of silence
of the State of Benin to all the notifications and other requests for
clarification addressed to it through its Secretariat.
20. This situation has led the African Commission to rule on the
admissibility of the communication submitted to it on the basis of the facts
brought to its attention by the Complainant.
21. In accordance with the provisions of Article 7, paragraph 1(d) of the
African Charter and its previous decisions, (cf. in particular
2communication 39/90, Annette Pagnoulle – on behalf of A. Mazou/Cameroon
[FN1])), the Commission considered that the waiting period before the Appeal
Court of Cotonou had been unduly prolonged and on these grounds, it had
declared the communication admissible.
[FN1] Communication N°39/90: Annette Pagnoule on behalf of Abdoulaye Mazou
The victim had unsuccessfully initiated many proceedings both
non-contentious and contentious. The
Commission felt then that local remedies had been exhausted
22. Details brought later to the case file by Interights and the Institute
for Human Rights and Development as well as by the Government of Benin
a. Following an appeal lodged by the two parties, the case was the subject
of a joinder by interlocutory decision dated 9th March 1996.
b. After several adjournments due mainly to non attendance by one or the
other party at the hearings, the court gave judgment by default on 5th
August 1999 indicating that non production of the disputed decision and
conclusions by the parties causes damage to the smooth administration of
c. Mr. Akitobi Honoré, the opponent of Mr.Odjouoriby, lodged an appeal
against this decision and Mr. Yansunnu, counsel of Mr. Odjouoriby, submitted
further pleadings in defence before the chamber of the Supreme Court on 27th
23. But the African Commission maintains that in any case, the State of
Benin remains the guarantor of a good administration of justice on its
territory and for the reasons, the African Commission upholds its decision
24. The African Charter on Human and Peoples’ Rights stipulates in Article
7, paragraph 1(d) that
“every individual shall have the right to have his cause heard. This
comprises...the right to be tried within a reasonable time”.
25. On 19th September 1995, the plaintiff lodged an appeal against judgment
No. 75/95 4° CCM delivered on 7th August 1995 by the civil chamber of the
court of first instance of Cotonou in its provisions on damages granted to
him by the said court.
26. On his part, Mr. Honore Akitobi (the opponent of Mr. Odjouoriby) filed a
cross-appeal in reply to the principal appeal and as pointed out earlier,
the proceedings pending before the appeal court are unduly prolonged.
27. Accordingly, the African Commission observes that the case before the
Appeal Court has been unduly prolonged.
28. The African Commission is of the view that this undue prolongation of
the case at the level of the Appeal Court is contrary to the spirit and the
letter of above-mentioned Article 7(1)(d).
29. Concerning the allegations of the plaintiff of violation of his right to
property, the Commission recalls that the right to property is recognized
and guaranteed by the African Charter of which Article 14 stipulates that
this right may be encroached upon only “in the interest of public need or in
the general interest of the community and in accordance with the provisions
of appropriate laws”.
30. The African Commission, however, is of the opinion that to the extent
that there has been no definitive decision in this case, it cannot
substitute itself to the national courts to appreciate violation of the
enjoyment of the right to property of the plaintiff.
FOR THESE REASONS THE AFRICAN COMMISSION finds the Republic of Benin in
violation of Article 7(1)(d) of the African Charter; requests the Republic
of Benin to take appropriate measures to ensure that the Complainant’s
appeal is determined by the Court of Appeal as quickly as possible; and
urges the Republic of Benin to take the necessary steps to pay appropriate
compensation for damages suffered by Mr Odjouoriby Cossi Paul due to the
unduly prolonged proceedings in the processing of his case.