Court rules it has jurisdiction to entertain a case by a Togolese company against the government of Togo over the cancellation of leasehold

The ECOWAS Court of Justice has ruled that it has the competence to hear a case brought by a Togolese company and five shareholders against the Republic of Togo alleging the breach of their human rights over the cancellation of a leasehold for the construction of a gas terminal to improve gas supply in the country.

In ruling the case ‘admissible,’ the Court dismissed the preliminary objection of the defendant, the government of Togo, challenging the competence of the Court   to hear the matter and fixed 2nd April 2020 to hear the substantive matter.

Counsel to the government of Togo, Barrister Apow Bakoh had filed a preliminary objection challenging the competence of the Court to hear the matter. He described the case as a nullity and the matter non admissible arguing that the 2nd to 6th plaintiffs were merely shareholders of STSG.

He argued that not being issued individual permits by the defendant for the project, they were not qualified to bring legal action against the defendant. Moreover, he said that the 6thplaintiff was not properly registered in Togo and therefore lacked the capacity to approach the court.

But in delivering the ruling on 5th of February 2020, Justice Gberi-Be Ouattara, noted that the subject matter of the suit relate to the alleged violation of human rights which is within the competence of the Court.

The Court also dismissed the counter application of the plaintiff urging the Court to examine both the preliminary objection of the defendant and the substantive matter, noting that both may only be joined when the preliminary objection can not be dissociated from the substantive matter, which was not the circumstance in this case.

In suit no ECW/CCJ/APP/21/18 filed before the Court on 18 May 2018 by Barristers Isabelle Vaugon and Ayodeji Aje, the plaintiffs alleged the violation of their right to property as provided under Article 14 of the African Charter on Human and Peoples’ Rights.

They also alleged the action violated the rights of Mrs. Rissicatou Razaq-Igue, the Chairman and Chief Executive Officer of Société Togolaise de Stockage de Gaz (STSG), one of the plaintiffs in the suit as guaranteed under Article 13 of the Protocol relating to the Rights of Women in Africa.

The STSG, which is the first plaintiff, averred that it was issued permits by the government of Togo for the construction of the terminal but that the leasehold agreement signed by SNPT with the Immobiliere du Togo on 13th October 2009 from which it was granted a sub-leasehold was abruptly cancelled and the land reassigned to SODIGAZ, another company.

In the initiating application, the plaintiffs which also included Mrs. Rissicatou Razaq-Igue, La Société GEOGAS Entreprise SAS, La Société PETROLEUM, La Société PETROGAZ and La Société L’Immobilière du Togo claimed that the abrupt cancellation of the leasehold and the reallocation of the land by the defendant to another company deprived them of possession and enjoyment of benefits accruing from that property, thereby violating their right to property.

Furthermore, they averred that they had already incurred huge cost for the construction of the terminal and demanded compensatory damages totaling Twenty-Three Billion, Five Hundred and Twenty-Four Million FCFA (23,524,000,000).

The claims as broken down are as follows: 3,942,000,000 FCFA representing loss in investments in the contract later cancelled, 17,300,000,000 FCFA being total of loss in revenue, 982,000,000 FCFA to Mrs.  Rassicatou Razaq-IGUE for prejudiced suffered and 650,000,000 FCFA each to GEOGAS Entreprise SAS, and RITIS PETROLEUM respectively as reparation for damages.

They further argued that they had explored various means of settlement with the defendant over four years to no avail before approaching the court.

Also on the panel were Justices Dupe Atoki and Januaria Costa.