[1994] ACHPR 12
The Commission found that the complainant had not exhausted all available domestic remedies, as he failed to properly appeal to the Court of Appeal of The Gambia against the Supreme Court's decision. The Commission held that the complainant's own default or negligence in pursuing domestic remedies rendered the...
Source-derived case information.
- Citation
- [1994] ACHPR 12
- Parties
- Applicant: Paul S. Haye; Respondent: The Gambia
- Court
- African Commission on Human and Peoples Rights
- Jurisdiction
- Uganda
- Case Number
- Communication 90 of 1993
- Procedural Posture
- Human Rights Communication / Admissibility Decision
- Outcome
- inadmissible
- Legal Topics
- Right to Fair Hearing, Exhaustion of Local Remedies, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul S. Haye
Applicant
The Gambia
Respondent
Procedural Posture
Human Rights Communication / Admissibility Decision
Legal Issues
- 1 Whether the complainant exhausted all available domestic remedies before approaching the Commission.
- 2 Whether the procedure for notification of hearing date was adequate and in compliance with Article 7 of the African Charter.
- 3 Whether the Supreme Court judge's discretion to disallow an appeal of his own judgment violated the complainant's right to have his cause heard.
Ratio Decidendi
The Commission found that the complainant had not exhausted all available domestic remedies, as he failed to properly appeal to the Court of Appeal of The Gambia against the Supreme Court's decision. The Commission held that the complainant's own default or negligence in pursuing domestic remedies rendered the communication inadmissible. The Commission reaffirmed its previous decision, noting that no new grounds had been raised to warrant a review. The principle of exhaustion of local remedies was determinative, and the alleged procedural deficiencies did not absolve the complainant from the obligation to pursue available legal avenues within the national system before seeking...
Court Disposition
inadmissible
Orders
- The communication is declared inadmissible for non-exhaustion of local remedies.
- The Commission reaffirms its previous decision and finds no reason to disturb it.
Full Case Text
Judgment text and source record
13 paragraphs
### **AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS Sixteenth Ordinary Session 25 October - 3 November 1994**
# **PAUL S. HAYE v. THE GAMBIA**
#### **DECISION**
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
Citation: Haye v. Gam., Comm. 90/93, 8th ACHPR AAR Annex VI (1994-1995)
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)
#### 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 complainant 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 notification 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.