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BEFORE: |
CHAIRMAN: Prof. Isaac Nguema
VICE CHAIRMAN: Dr. Mohamed H. Ben Salem
COMMISSIONERS: Prof. Emmanuel V.O. Dankwa, Mr. Sourahata B. Semega
Janneh, Mr. Robert H. Kisanga, Dr. Vera V.B.S. Duarte-Martins, Dr.
Ibrahim A. Badawi Ei-Sheikh, Prof. U. Oji Umozurike |
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PermaLink: |
https://www.worldcourts.com/achpr/eng/decisions/1994.11.03_Haye_v_Gambia.htm |
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Citation: |
Haye v. Ghana, Decision, Comm.
90/93 (ACmHPR, Nov. 03, 1994) |
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Publications: |
IHRDA, Compilation of Decisions on
Communications of the African Commission On Human and Peoples�
Rights Extracted from the Commission�s Activity Reports 1994-2001,
at 102 (2002); Documents of the African Commission on Human and
Peoples� Rights, at 393 (Malcolm D. Evans & Rachel Murray eds.,
2001); (2000) AHRLR 102 (ACHPR 1995) |
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THE FACTS
1. In November 1987, the complainant hired Edward Gomez, an attorney, to
register a company for him. Complainant paid to Mr. Gomez a sum of D7,150 in
fees, but the company was never registered. In March 1990, complainant sued
Mr. Gomez for the return of the money. Mr. Gomez filed a counterclaim, but
before the suit could be heard the judge who had been scheduled to hear the
case resigned. After inquiries to discover when the suit would be heard,
complainant was told to await notice by the court.
2. On 2 October 1991, a minivan belonging to the complai�nant was seized. He
was informed that after failure to appear in court on 28 May 1991, a default
judgment was entered in favour of Mr. Gomez, and the mini van was seized to
satisfy the judgement. Complainant filed a motion for leave to appeal the
judgment to the Gambia Court of Appeal on the grounds that he never received
notifica�tion of the 28 May court date. This motion was heard by the same
judge who made the original judgment, and was denied. Therefore the
complainant alleges that he has no further domestic remedies available.
ARGUMENT
3. Complainant alleged violation of his rights under Article 7 to have his
cause heard. The Supreme Court judge had absolute discretion to disallow an
appeal of his own judgment. Questions also arise over the adequacy of the
procedure of service (notification of hearing date.)
DECISION
4. At its 16th session the Commission declared the case inadmissible for non
exhaustion of local remedies. The complainant by reason of his own default
and/or negligence, did not seek to appeal to the Court of Appeal of The
Gambia against the decision of the Supreme Court referring his application
for leave to appeal to the Court of Appeal. Upon the complainant being
notified of this decision he wrote back urging the Commission to review its
decision on the same grounds he had advanced before. As no new grounds are
raised or shown, the Commission finds no reason to disturb its previous
decision which is accordingly reaffirmed. |
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