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Communication 286 /2004 – Dino Noca vs Democratic Republic of the Congo
Summary of the Facts:
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1. The complaint was brought before the African Commission on
Human and Peoples’ Rights (the Commission on 6 December, 2004
against the Democratic Republic of the Congo (the DRC or the
Respondent State)1 by Mr. Dino Noca represented by Mr.
NYABIRUNGU Mwene Songa, a Lawyer at the Bar of Kinshasa (the
Complainant); then by Mr. FAKATI wa LUHINDI Défi Augustin, a
Lawyer at the same Bar who later continued with the proceedings.
2. The Complainant presents a dispute concerning a building located in
the District of Ibanda and registered in the cadastral plan of the city of
Bukavu, South Kivu Province, under number 17 R/22 , which dispute
was ruled on by Judgment No. RCR/C019, on 28 November 2003 by
the Supreme Court of Justice of the Democratic Republic of the Congo.
3. The Complainant alleges that the building is the property of the late
Lucio NOCA, of Italian nationality, deceased on 27 May 1992, at
Sordevolo, a demise which occurred in the course of the hearing.
4. He further emphasizes the fact that the complainant’s rights to the
building were covered by the Registration Certificate vol. F.XXX, folio
23, which constituted a title deed under the legislation of the Republic
of Zaire, now the DRC.
5. The Complainant alleges that later on the State adopted Ordinance
No. 74-152 of 2 July 1974 relating to abandoned or undeveloped
properties and other assets acquired by the State under the law.
Properties covered by this law were ceded to Congolese nationals and
the relevant title deeds were nullified without intervention by any
court.
6. The Complainant alleges that to circumvent the application of the said
law, the late Lucio NOCA entrusted the management of his building to
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The DRC ratified the African Charter on 20 July, 1987
Supporting evidence No. 1
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the State-owned National Insurance Company (SONAS) which had the
competence to manage real estates belonging to non-resident
expatriates.
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7. The Complainant alleges that in spite of this state of affairs, the
building was declared abandoned and allocated in turn to persons by
name Matakina and Kafwa Kasongo respectively. As Mr. Matakina
had not satisfied the required conditions for the aforementioned
property to be allocated to him, it was instead allocated to Mr. Kafwa
Kasongo, the then State Prosecutor at the Bukavu High Court, whose
claim was deemed to be valid.
8. The Complainant further submits that the withdrawal of the building
from the estate of Noca also followed Order No. 1440/000152/80 of 3
September 1980, which had wrongly classified the building as
abandoned property3.
9. The Complainant alleges that following an appeal made by SONAS to
the competent authority against this ruling declaring it abandoned
property, the latter won the case by Order No. 1440/000207/82 of 20
September 1982, ceding back the building in question4.
10. The Complainant claims that the appeal filed by SONAS was initially
ignored by the Head of Lands Department in Bukavu City who
requested that the document in his possession be authenticated. This
was done by a telephone message No. 00027/84 dated 5th July 1984.
The same message was confirmed by letter No. 1.440/000748 of the
same date from the Minister of Lands, who was then State
Commissioner, to repeal Order n°. 1.440/000152/80.
11. The Complainant points out that without waiting for the
authentication of the document, the Head of the Lands Department
issued a registration certificate to Mr. Kafwa Kasongo on 9 June 1984
in defiance of the order; whereas the Judgement on the declaration of
buildings as abandoned property of 3 September 1980 and Order
n°74-152/74 of 2 Jul 1974 had been repealed one after the other on 20
September 1982
and 2 February 1984 by Judgement No.
1440/000207/82 and Order No. 84-026/84 respectively
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Supporting evidence No. 17-18
Supporting evidence No. 19
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12. The Complainant further alleges that copies of the aforementioned
documents were produced and copied at the same time to the Head of
the Regional Department of Lands, the Curator of Title Deeds and the
Governor’s Office in Kivu Province.
13. The Complainant therefore concludes that the Head of the Regional
Department of Lands had acted knowingly and intentionally refused
to wait for the reaction of his superior.
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14. The Complainant asserts that following the issuance of the
registration certificate to Mr. Kafwa, the State Counsel for South Kivu
was invited by the Ministries of Justice and Lands to file for an
annulment of the title deed wrongfully allocated to Mr. Kafwa.
The Complaint:
15. The Complainant submits that in the light of the above mentioned
facts, the Respondent State has violated Articles 3, 7 and 14 of the
African Charter.
16. The Complainant further requests the Commission to:
- Declare judgement No. RCR/C019 of 28th November 2003 null and
void following the requested disqualification of the right of Mr.
KAFWA to the disputed property; recognise the right of Mr. NOCA
Lucio, and, by extension, his sole heir, Mr. Dino NOCA to the said
property.
- Award to Mr. Dino NOCA as compensation for occupation and
deprivation of use of property for 28 years a minimum amount of
USD 400,000, including legal fees.
The Procedure:
17. The Complaint was submitted on 12 February 2004 to the Secretariat of
the Commission, which acknowledged receipt of it the same day.
18. At its 35th Ordinary Session held from 21 May to 4 June 2004 in Banjul,
The Gambia, the Commission decided to be seized of the
Communication and requested that the interested Parties be informed.
The Secretariat informed the Parties of the Commission’s decision and
requested them to submit their written arguments on admissibility.
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19. The Complainant submitted its written arguments on the admissibility
of the Communication to the Secretariat of the Commission during the
deliberations of the 35th Ordinary Session. The Secretariat submitted a
copy of the complaint and the arguments of the Complainant to
representatives of the Respondent State present at this Session.
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20. By an additional submission on the admissibility of the
Communication forwarded on 6 December 2004, the Complainant
informed the Secretariat of the Commission about the replacement of
Mr. NYABIRUNGU Mwene SONGA by Mr. FATAKI wa LUHINDI
Défi Augustin, a Lawyer at the Bar of Kinshasa/Gombé to pursue his
interests at the Commission.
21. The Commission considered the Communication at its 36th, 37th, 38th,
39th, 40th, 41st 42nd and 43th Ordinary Sessions and at every session
deferred its decision for lack of arguments from the Respondent State
on admissibility.
22. The Secretariat informed the parties to the Communication of the
Commission’s decision by requesting at each time that the Respondent
State should submit its written observations on the admissibility of the
Communication.
23. A Note Verbale as a reminder had been forwarded to the Respondent
State on 23 March 2006 with a copy of the arguments of the
Complainant Party attached to it.
24. In another note verbale dated 4 October 2007, the Secretariat reminded
the Respondent State that the Commission’s decision on deferment
was firm on the submission of its written arguments within a period of
one month. In this regard, the Secretariat reminded the Respondent
State that if it failed to present its arguments, the Commission would
proceed with the consideration of the case on the basis of the facts in
the file.
25. At its 44th Ordinary Session held in Abuja, the Federal Republic of
Nigeria, the Commission declared the Communication ADMISSIBLE
on the basis of the information in its possession.
26. By note verbale and letter dated 19 December 2008, the Secretariat of
the Commission informed the parties that it had declared the
Communication admissible and invited them to submit on the merits
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of the case before the 45th Ordinary Session scheduled for 13 to 27 May
2009 in Banjul, The Gambia.
27. By note verbale and letter dated 24th April, 2009, the Secretariat of the
Commission advised the parties to file their submissions on the merits
of the Communication at the 45th Ordinary Session scheduled for 13th
to 27th May, 2009 in Banjul, the Gambia.
Admissibility
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Arguments of the Complainant on Admissibility
28. The Complainant argues that the Communication meets all the
requirements laid down by Article 56 of the African Charter. He
emphasizes that the Victim is well known and that the Complaint is
compatible with the Charter as it relates to alleged violations by the
DRC of Articles 3, 7 and 14 of the African Charter.
29. Still according to the Complainant, the complaint filed at the
Commission does not contain any disparaging remarks against
Congolese authorities.
30. The Complainant notes that his Complaint is based on real facts as
evidenced by the numerous documents submitted in support of the
complaint.
31. The Complainant also alleges that local remedies under Congolese
law have been exhausted, given that the Complainant seized the High
Court of Bukavu and the Bukavu Appeals Court.
32. The Complainant declares that following a petition lodged on 12 July
1991, the Supreme Court of Justice, by ruling in judgement No.
RC/1704/1705, dated 3 March 1994, had overturned judgement No.
RC 1155/1180/1729 delivered on 8 April 1991 by the Bukavu Appeals
Court and referred the case to the Appeals Court in Kinshasa/Matete.
By Judgement No. RAC 001 delivered on 29 December 1994, the Court
of Appeal in Kinshasa Matete rejected the appeals of the appellants,
namely State, Noca and Kizila.
33. The complainant alleges that a second appeal for annulment of
judgment No. RAC 001 rendered on 29 December 1994 by the Court of
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Appeal of Kinshasa/Matete was lodged with the Supreme Court and
registered under RC029/TSR.
34. The Complainant alleges having even resorted to extraordinary
remedies which are vested solely in the Minister of Justice and
Attorney General who had declared the remedy unavailable as
confirmed by letter No.1023/mm90/CAB/MIN/J/2004, dated 23
March 2004, which was sent in response to the letter from Mr. Manzila,
dated 12 December 2003 (documents attached to the file).
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35. The Complainant asserts that the Complaint was lodged with the
Commission for almost three months after delivery of the final
judgment by the Supreme Court on 28 November 2003 and that the
Commission is the only body seized of this matter.
Arguments of the Respondent State on Admissibility
36. The Respondent State made no submission on the admissibility of this
communication despite numerous reminders that had been forwarded
to it.
Analysis of the Commission on Admissibility
37. The admissibility of Communications submitted in accordance with
Article 55 of the Charter is governed by the requirements stipulated in
Article 56 of the same Charter.
38. The Commission consistently made sustained efforts to get the
Respondent State to forward its written arguments and observations
on admissibility since its 35th Ordinary Session held from 21 May to 4
June 2004 in Banjul, The Gambia, when the Commission was seized of
the Communication.
39. The Commission therefore notes the refusal by the Respondent State
to cooperate, and is obliged to consider the Communication on the
basis of verifiable information provided by the Complainant.
40. Furthermore, it must be noted that during the 42nd Ordinary Session
held in Brazzaville, Congo, a delegation of the Respondent State
pledged to exercise due diligence in order to forward its written
arguments on admissibility.
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41. The Respondent State, however, did not make any submissions to
dispute the arguments of the Complainant on the admissibility of the
case.
42. As a result, the Commission declares the Communication admissible
in accordance with Article 119 paragraph 45 of its Rules of Procedure
and with its own jurisprudence.6
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MERITS
Observations of the Complainant on the Merits
43.
The Complainant alleges that the Respondent State has violated his
rights guaranteed by the African Charter. In specific terms, the
Complainant alleges the violation of Articles 3, 7.1c and 14 of the African
Charter.
On the alleged violation of Article 14
44. The Complainant alleges that in execution of the measures referred to
as economic, based on Congolese legislation adopted on 2 July 1974 in
relation to abandoned or undeveloped properties and other assets
acquired by the State under the law, Mr. NOCA’s building covered by
the registration certificate drawn up on 1 st September 1952, was
declared abandoned.
45. The Complainant also alleges that before leaving the DRC for his
native country, Italy, Mr. Dino NOCA had taken precautions by
entrusting the management of his building to SONAS, an official
institution of the Congolese State. This, according to the Complainant,
was one of the conditions for eluding this measure which was aimed
at declaring his building as abandoned.
Indeed, Article 119 (4) of the old Rules of Procedure stipulates that “States parties from whom
explanations or statements are sought within specified times shall be informed that if they fail to
comply within those times the Commission will act on the evidence before it.”
66 Using as sole basis the arguments of the Complainants in the absence of arguments from the
Respondent State, the African Commission proceeded to consider communications 155/96 ـ
Social and Economic Rights Action Center, Center for Economic and Social Rights vs Nigeria and
159/96 Inter African Human Rights Union, International Federation of Human Rights Leagues,
African Human Rights Encounter, National Human Rights Organization in Senegal and the
Malian Human Rights Association vs Angola (11th Annual Activity Report).
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46. The Complainant also asserts that despite the fact that Mr. NOCA had
complied with this requirement, the greed to grab the assets of
foreigners made some Congolese citizens, in collusion with some
State officials, to outwit the vigilance of the authorities and declare
NOCA’s building as abandoned. Thanks to the intervention of
SONAS, an opposition to this action was granted by the Minister of
Lands and Property.
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47. The Complainant alleges that Mr. NOCA is the undisputed owner of
the building situated at n°17R/2 in Ibanda in the city of Bukavu and
this is based on a registration certificate issued to him by the Curator
of Landed Property Titles on 1st September 1952, an act which
consequently recognizes the property right of the Victim under
Congolese law.
48. The Complainant further argues that on the basis of Article 227 of the
Congolese Land Law, the registration certificate is indisputable after
two years of existence with effect from the date of its establishment,
and the Complainant further argues that notwithstanding this Article
227 of the Land Law and of Article 14 of the African Charter, Mr.
NOCA was deprived of his property right.
49. According to the Complainant, on the basis of Order No 74-152 of 2
July 1974 on abandoned or undeveloped properties and other assets
acquired by the State under the law, a Ministerial Order
n°1440/000152/80 of 3 September 1980 all the same declared
residential plot n°17R/2 situated in Ibanda-Bukavu as abandoned,
thus undermining the rights of the Victim.
50. The Complainant further alleges that two years after the appeal for
annulment filed by SONAS, the above mentioned Order was annulled
by Order n°1440/000207/82 of 20 September 1982.
51. The Complainant asserts that the Order of the Minister responsible for
Landed Property and Real Estate was communicated by letter dated
20 September 1982 to the SONAS Property Manager on the same day.
52. The Complainant also alleges that two years after the annulment of
the Order of 3rd September 1980, the President of the Republic
pronounced the Order n°84-026 of 2nd February 1984 relating to the
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repeal of the Order on abandoned or undeveloped property and other
assets acquired by the State under the law of 2 July 1974.
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53. The Complainant also points out that the repeal of this Order had
been justified in these terms: “unfortunately, the difficulty of determining
the objective criteria of the abandonment, the insufficiency and the vagueness
of those set out by this Order (of 2nd July 1974), the brevity of the opposition
timeframe and the inefficiency of the publicity measures have given rise to an
alarming opinion at both the national and international levels that this law is
only aimed at merely confiscating the landed property of foreigners.
Furthermore, its application has given rise to considerable fraud. Several
unscrupulous and dishonest individuals with the complicity of the Public
Service, have used it to defraud others illegally. This has resulted in the
numerous cases of litigation now pending before our Courts and Tribunals
and which too often undermine the responsibility of the State”.
54. The Complainant alleges that the NOCA case is an illustration of this
relation in which the complicity of the administration is evidenced in
the manoeuvres of the Real Estate Curator (State Official) of the city of
Bukavu who, under the guise of adherence to procedure, and by his
letter dated 30th May 1984, requested from his superior, the Minister
responsible for Landed Property and Real Estate, clarification
regarding the authenticity of Order n°1440/000207/09/82 of 20th
September 1982 which repealed Order n°1440/000152/80 of 3rd
September 1980 because there was no trace of the said document in
the file of the disputed property and his Department had only a
photocopy.
55. The Complainant further alleges that only 8 days after forwarding his
letter to the Minister for Landed Property, namely on the 9 th June
1984, this official, who was bent on undermining the interests of Mr.
Noca, decided to issue the registration certificate for Mr. NOCA’s
building to Mr. KAFWA, in violation, among others, of the provisions
of Article 235 of the Land Law which stipulates that: “except in cases
where the assignment is ordered by law or in those provided for by special
laws, no assignment can be effected without prior delivery to the Curator of a
certificate in replacement. In all cases of assignment, the old certificate
recorded in the Registration Book must be marked with an annulment stamp
and with a note indicating, in the format established by Article 226, the
reasons for annulment and the date and number of the new certificate”.
56. The Complainant recalls the fact that this decision of the Curator
notwithstanding, close to 25 days afterwards, namely on the 5th July
1984, the Minister for Land Matters sent a letter and a phone message
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to the Curator in which he confirmed the repeal of the Order of 3rd
September 1980, but this did not bother the Curator to the point of
making him go back on his decision and annul the registration
certificate which had been unjustly established for the benefit of Mr.
KAFWA.
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57. The Complainant underscores that the right to property guaranteed
by the Charter is fully recognized by the Constitution of the DRC and
conveyed by the Congolese doctrine. Indeed, Article 36 of the
Constitution stipulates that “private property is sacred. The State
guarantees individual or collective property rights acquired pursuant
to law or custom.” These rights may be undermined only by virtue of
a law and for reasons of general interest, subject to prior and fair
compensation payable to the person being deprived of his rights7.
Finally, according to Article 37 paragraph 2 of the Constitution “No
one shall be dispossessed of his property except by virtue of a
decision taken by a competent judicial authority.”
58. The Complainant considers that all these constitutional provisions
establish the constitutional bases and value of property in general
and, in particular ownership, in the DRC.
59. The Complainant points out that the decision of the Curator is
confiscatory and devoid of any legal basis considering that the Order
declaring the NOCA building abandoned and the Ordinance on
abandoned property had been repealed.
60. The Complainant argues that the repeal of the Order of 3rd September
1980 and the Order of 2nd July 1974 have amply buttressed Mr.
NOCA’s right to ownership of the aforementioned building.
61. The Complainant concludes that despite the two repeals and the
constitutional guarantees of property rights, the State, through its
agent the Curator of Landed Property, has wrongfully dispossessed
Mr. NOCA of his property. Hence it may safely be concluded that
Article 14 of the Charter has been violated.
On the violation of Articles 3 and 7. 1. c
7 Article 37 paragraph 1 of the Transitional Constitution of 4 April 2003. See also Section 21 of
Law No. 93–001 of 2 April 1993 relating to the Harmonized Constitutional Act for the transitional
period).
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62. The Complainant alleges that despite the formal decision taken by the
aforementioned Minister to remove the NOCA building from the
category of abandoned assets, Mr. Kafwa, then State Prosecutor at the
Bukavu High Court in South Kivu, used his position of authority and
his relations with the South Kivu provincial authorities to obtain a
Title Deed for the NOCA building.
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63. Alerted by SONAS, the Ministers of Justice and Land Matters
instructed the State Counsel for Kivu Province to seize the Court for
the annulment of the Title Deed illegally issued to the former Public
Prosecutor Mr. Kafwa.
64. The Complainant submits that on the basis of the observation that the
State Commissioner for Land Affairs had annulled the letter
allocating the disputed property in favour of citizen KAFWA through
letter No. 1440/OOO7/48/84 of 5th July 1984, the Congolese State had
instituted proceedings under RC 1443 against KAFWA for the
annulment of the Certificate issued to the latter to the detriment of the
late NOCA. Contrary to all expectations, the Bukavu Tribunal had
rejected the request of the State for non justification through its
Judgement of 10th June 1985 which was to be served on the State of
DRC on the 17 July 1985 represented by the Governor of the Kivu
Region in Bukavu.
65. The Complainant goes on to say that curiously, the same Governor of
the Region who had issued an illegal order to the Curator to issue the
registration certificate to Mr. KAFWA, even though the Judgement
had quite rightly been served on him, refrained from seizing the
competent authorities to appeal against this ruling.
66. Nonetheless, according to the Complainant, the Appeals Court was
seized by special powers of the Minister of Justice to the State
Attorney against this decision considered illegal. Thus, the
Government of the DRC, through its Secretary of State for Justice filed
an appeal under RCA 1180 against the Judgement of 10 June 1985. For
his part, against this same ruling, the successors of the late NOCA
instituted a third-party opposition under RC 1729 before the Bukavu
High Court, but the Appeals Judge confirmed his colleague’s first
proof ruling.
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67. The Complainant further states that the Minister gave a second
instruction to his Counsel in the Supreme Court to seize this Court to
set aside the Judgement rendered by the Bukavu Appeals Court. This
judgement was annulled and the case returned to the
Kinshasa/Matete Appeals Court.
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68. The Complainant alleges that the State did not win the case before this
Court and again through the intermediary of the Minister of Justice
introduced a second petition for annulment against the judgement
RAC 001 of 29/12/1994 issued by the Kinshasa/Matete Appeals
Court. The Supreme Court, seized once again, did not give in to the
State’s request and the case was dismissed.
69. The Complainant notes that the demise of Mr. Lucio Noca in
Sorvedolo, Italy in 1992, occurred subsequent to the institution of the
first annulment proceedings initiated in 1991 and the Supreme Court
deemed it necessary to call the Noca successor to the case to enable
the latter to present his case and defend his interests just like Mr.
Kafwa.
70. According to the Complainant, the ruling of the Supreme Court under
Judgement No RCR/C 019 of 14 July 2000 ordered the successors in
title of the late NOCA to continue the suit in the following terms:
“Start proceedings to allow perfecting of the case. Give instructions for the
notification of dates to be issued collectively to the successors in title of the
late NOCA LUCIO to the elected Domicile during his lifetime ». 8
71. The Complainant further alleges that, on the subject of the pursuance
of the lawsuit, this Judgement puts forward the following
reasons: “the Court indicates that the combination of Articles 19 and 20 of
the procedure applicable before it, the timeframe appoints beforehand the 6
months set out collectively to the successors in title at the last elected
domicile. This formality was not fulfilled in this case. In consequence, since
Mr. NOCA’s successors in title were not informed of the current
proceedings, they cannot be presumed to have withdrawn from the pursuance
of the lawsuit”.
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Supporting evidence No. 77-79
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72. The Complainant contends that afterwards the Dino Noca party was
summoned to pursue the lawsuit by a writ served by a bailiff9 under
the terms of Judgment No RCR/C 019 of 14 July 2002.
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73. The Complainant states that as the sole heir to Lucio Noca’s estate,
Mr. Dino Noca responded to the summons of the Supreme Court to
resume the suit during which he became a constrained party, a
position which is clarified by an author as follows: “where a party has
just died when a case is pending, a voluntary or constrained
resumption of the suit may be resorted to by the heirs in order to
continue the proceedings”10.
74. The Complainant also alleges that it is surprising to note that in spite
of the decision by the Supreme Court to resume the case pending
before it, the latter surprisingly prohibited the NOCA Party, under
judgement RCR/C019 delivered on the merit on 28th November 2003,
from submitting the case for the defence by rejecting the right of the
Noca succession’s pursuance of the suit that it had itself decided and
a allow a third-party opposition. According to that Judgement, the
following was stipulated: “regarding the third-party opposition and the
pursuance of the suit, the Court rules that the Judgement RC029/TSR
having been declared inadmissible, the joint appeal of 3rd May 1995 as
emanating from Mr. NOCA Lucio who had passed away on the 27th May
1992, the issue is definitively settled since Judgement No RAC/001 of 29
December 1994 of the Kinshasa/Matete Appeals Court which had acquired
competence of the case had irrevocably judged against the NOCA Lucio
successors. Consequently, the pursuance of the suit should not have been
ordered”.11
75. The Complainant regrets that in spite of his determination to continue
the suit, the Supreme Court did not give him that opportunity
because it rescinded its decision to allow the suit to continue by
nullifying it, whereas in such circumstances, if the Supreme Court had
thought it had made a mistake by forcing Dino Noca to continue the
suit, it should have reopened proceedings for the purposes of
notifying Dino Noca of this fact.
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Supporting evidence No. 77-79
A. Rubbens : le droit judiciaire zaïrois .T.II, n°237, presse universitaires du zaïre, Kinshasa 1978.
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Supporting evidence No. 38-92
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76. The Complainant believes that the parties should therefore take the
written conclusions and present arguments on the position of the
Supreme Court with regard to the resumption of the suit by the heirs
of late Noca which is presumed to have been wrongly ordered.
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77. The Complainant asserts that the final decision RCR/C019 of 28
November 2003 pretends to be unaware of the existence of the
previous decision RCR/C 019 of 14 July 2002, which provides the
above reasons as justification for the pursuance of the suit by the
Noca claimants.
78. The Complainant is outraged at the possibility that the composition of
the Court, which is the author of the decision of 28 November 2003,
should have a real problem of interpretation of these two decisions
which it was required to reconcile in light of the judgment delivered
by all sections put together.
79. The Complainant further alleges that the final judgment RCR/CO19
of 28 November 2003 which dismissed the obligation to reopen the
proceedings for hearings on the position of Dino Noca, thus deprived
the latter of the “right to have his case heard”, which right would
have provided the Noca party the possibility of appearing for hearing
at the Court to prove its claims to the building under litigation12.
80. The Complainant further alleges that this attitude of the Court
violates in consequence Article 7. 1c and Article 3 of the African
Charter. On the one hand, the Noca Lucio successors represented by
their legal liquidator Mr. Dino Noca had not had the opportunity to
adequately prepare their case for the defense, the evidence and
submission of arguments to counter the claims and evidence of the
adverse party. On the other hand, the principle of equality before the
law stipulated in Article 3 of the Charter was violated since only the
case of the opposing party, in this instance Mr. Kafwa, had been taken
into account.
81. According to the Complainant, in light of the foregoing, there is no
shadow of doubt that the provisions of Articles 7. 1c and 3 of the
Charter were violated by the Supreme Court, an institution run by
officials of State of the Democratic Republic of the Congo.
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Supporting evidence No. 80-87
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Arguments of the Respondent State on the Merits
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82. The Respondent State claims that following a request for land
ownership signed on 30 January 1984 by Mr. Kafwa, then Public
Prosecutor in Bukavu, the Curator of Real Estate of Bukavu by letter
n°2448.5/820/84 of 27 March 1984, had proposed to the State
Commissioner responsible for Land Issues that he be allocated the
building situated on plot 17R/2 in Ibanda, formerly owned by NOCA
and declared abandoned by Order n°1440/000152/80 of 3 September
1980 and allocated the same day to a certain MATAKINA who up to
the date of the proposal had not paid for the cost to the Public
Treasury.
83. The Respondent State argues that at the time the Curator of Title
Deeds was making this proposal, he was unaware that the
abandonment order had already been repealed by Order No.
1440/000207/82 of 20 September 1982
84. The Respondent State alleges that in response to the letter from the
Curator of Title Deeds, the State Commissioner allocated the disputed
building to the party per letter n° 1445/21/000605/84 of 23 May 1984.
However, at the time that the registrar was getting ready to issue the
title deeds to give effect to the allocation made by the State
Commissioner, he was informed about the existence of the repeal
order.
85. The Respondent State further indicates that by a letter dated 30 May
1984, it requested the State Commissioner to confirm the authenticity
of the said Order of which he had only been provided with an
ordinary photocopy. On 2nd June 1984, the Governor of the Region
requested the Curator to prepare the Title Deed in favour of Mr.
KAFWA in view of the former owner’s lack of interest in recovering
his property.
86. The Respondent State in its memorandum states that on the 9th June
1984, the Curator of Real Estate signed a lifetime lease with the
applicant in favour of whom he prepared the registration certificate
volume F 82-folio3, sequel to the receipt by the Authorities of the costs
relating to the valuation of the building as well as the related
15
16
expenses, so that following the annulment of the Order that had
declared the property abandoned, the concerned parties could no
longer make a claim to the legal authorities for the building for which
the ownership had been finally and legally allocated to the applicant
pursuant to Section 227 of the Land Law which stipulates that the
registration certificate was final and constituted evidence as of right of
the ownership of the building.
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87. The Respondent State further says that on the 18th July 1984, the DRC,
on the signing by the State Commissioner in charge of Landed
Property, instructed his Counsel in the following terms: “the Curator
has issued a registration certificate to Citizen KAFWA KASONGO BIN
KASENDE. This certificate, having no legal basis, I ask you to institute legal
proceedings for its annulment”.
88. It would appear from the arguments of the Respondent State that
using as basis the Report of the State Commissioner for Landed
Property, the DRC had instituted a lawsuit against Mr. KAFWA
under RC 1443 requesting the annulment of Mr. KAFWA’s
registration certificate. The outcome was a Judgement on the 10 th June
1985, the terms of which declared the demurrer groundless for want
of qualification raised by the Respondent; the suit of the original
plaintiff and dismissed it in consequence; the suit of the Respondent
on reconversion; and condemned each of the Parties to pay half of the
taxed costs.
89. The Respondent State shows further that the Republic of Zaïre
(currently DRC) was notified of the Judgement on the 17th July 1985
represented by the Regional President of the MPR and the Governor
of the Kivu Region in Bukavu who was in the latter’s office discussing
it with Mr. BALAGIZI, official of the Governorate who signed for
receipt of the notification, in conformity with Article 8 of the Civil
Procedure Code.
90. The Respondent State further indicates that the DRC having refrained
from filing an appeal within the timeframe laid down by law, the
Chief Registrar of the Kivu Appeals Court in Bukavu issued to Mr.
KAFWA on the 19th August 1985, a certificate reporting the absence of
any appeal on the part of the DRC against ruling No RC.1443.
91. In order to fully enjoy his right of ownership, Mr. KAFWA filed a writ
for eviction under RC 1683 on 22 November 1985 against Mr. KIZILA
wa TUBULWA who according to the Respondent State was
16
17
occupying the disputed building with neither Title Deed nor right
under RC 1683.
92. The case having been adjourned on two successive occasions, it
eventually took place with Mr. NOCA Lucio and Mr. KASILEMBO
KAKIENGNE through a subpoena for intervention of 3 January 1986.
93. The Respondent State asserts that during the proceedings Mr.
KASILEMBO had placed his withdrawal on record following a letter
of 8 January 1986.
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94. The Respondent State continues by saying that the case (RC 1683) of
the 19th February 1986 led to Mr. KIZILA and his family being
condemned to eviction and to the payment of an amount of fifty
thousand (50,000) zaïre to Mr. KAFWA; and also condemned Messrs
NOCA Lucio, KAZILA, KASILEMBO to pay a third each of the costs.
95. The Respondent State still in its memorandum declared that the DRC,
sequel to the acquisition of a special proxy provided by the Secretary
of State for Justice on behalf of DRC filed an appeal on the 12th
February 1986 under RCA.1180 against the Judgement RC.1443.
96. Mr. KIZILA also filed for appeal under RCA 1155 against RC 1683 of
19 February 1986. Mr. NOCA Lucio also instituted proceedings under
RC 1729 before the Bukavu High Court supposedly in third-party
opposition against Judgement No RC 1443.
97. The Respondent State further declares that by a ruling of the 7th July
1986, the Bukavu High Court referred the case in third-party
opposition on the express request of the third opponent NOCA Lucio
to the Court of Appeal for it to be joined to that of RCA 1155 which
was pending on the appeal of KIZILA and RCA.1180 pending on the
appeal of the Republic.
98. A single and only Judgement was delivered by the Bukavu Court of
Appeal after having ruled on the entire litigation after combination of
the different cases under RCA 1180/1155 and RC 1729, declaring
them inadmissible for violation of the law of Mr. NOCA’s third party
opposition under RC 1729 and the appeal of the Republic under RCA
1180 and the unjustified appeal of Mr. KIZILA under RCA.1155.
99. The Respondent State further declares that the first appeal for
annulment of judgement No. RCA1155/1180/1729 of 9 April 1991
17
18
was filed through the requests of 31st May and 25th June 1991 by the
parties NOCA Lucio, KIZILA and the DRC under RC1704/1705. The
outcome was a Judgement of the 3rd March 1994 delivered by the
Supreme Court referring the case to the Kinshasa/Matete Appeals
Court and stated the law that: “the jurisdiction of discharge should not
take into account the notification of the first proof ruling served to the
Governor of the Region in lieu and on behalf of the Ministry of Justice or of
his delegate to decree the inadmissibility of the appeal by the Republic of
Zaïre for lateness”.
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100. The Respondent State also intimates that in view of Mr. NOCA’s
demise on the 27th May 1992 in Sorvedolo in Italy, since no haste was
made to direct the case to the Matete Appeals Court which had been
duly seized by the ruling on referral by the Supreme Court, Mr.
KAFWA took charge of it by sending to the different parties the
notifications for appeals and subpoenas and the notifications for the
dates of the common hearings. The Court of Appeal, satisfied that it
had been duly seized of the said acts, ruled on the case and
pronounced on 20 December 1994, under RCA.001, a ruling
confirming the appealed Judgment in all its provisions.
101. The Respondent State asserts that the Judgement delivered paved
the way for an appeal for annulment initiated under RC. 029/TSR by
way of an application filed on 3rd May 1995 at the Registry of the
Supreme Court by the Democratic Republic of Congo, Mr. Noca
Lucio and KIZILA WATUMBULWA respectively.
102. The Supreme Court ruled by Judgement of the 21st January 2000. It
declared inadmissible the appeal for annulment emanating from
NOCA Lucio, but received the joint appeal by the DRC and KIZILA
WATUMBULWA, the said counsel and referred the case to the
Judicial Division for ruling on the merits.
103. The Respondent State further indicates that the case referred by
the ruling of the Appeals Court to the Judicial Division of the
Supreme Court had had two major highlights, namely the pursuance
of the suit by the successors of NOCA Lucio, deceased on 27
December 1992, and then the testimony of the said successors under
the terms of which the late NOCA Lucio, during his lifetime, had
already sold the disputed building to Mr. KASILEMO, with the
consequence that his successors could no longer lay any claim to the
disputed building.
18
19
104. For the Respondent State, a reproduction of the testimony of the
successors and the Deed of pursuance of the suit was done so as to
establish the futility of the lawsuit instituted by Mr. NOCA Dino
before the Commission.
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105. Following reading of the terms of the late NOCA Lucio’s will, the
Respondent State declares that NOCA Dino admitted that his father
had sold the disputed building to Mr. KASILEMBO. Therefore, the
only logical conclusion to be drawn was that the said building had
long ago ceased to be part of Mr. NOCA Lucio’s inheritance and
estate. According to the State, it was with good reason that the
Supreme Court had dismissed all of Mr. NOCA Dino’s claims.
Consequently, it is up to Mr. KASILEMBO to claim his landed
property.
106. The Respondent State in its conclusion asserts that according to the
history of the facts and background of the case, Mr. KASILEMBO,
having been subpoenaed to the suit RC1683 in voluntary intervention
of 3rd January 1986, he also voluntarily withdrew his suit and in any
case did not file any appeal against the Judgement of the 19th
February 1986 which had declared his suit inadmissible for non
payment of deposit. Thus, the real property rights on which Mr.
NOCA Dino based his appeal having been transmitted at the time to
Mr. KASILEMBO, or at least since 1986, Mr. NOCA Dino should have
his appeal dismissed for want of qualification due to the absence of
his own claimed right to the property.
107. The Respondent State in its memorandum is of the view that since
Mr. NOCA, Father, could not take advantage of a right to property
which he had already assigned to a third Party; his successor had
wrongfully pleaded the violation of Article 14 of the Charter to which
he is a stranger.
108. With regard to the violation of Article 7 of the African Charter, the
Respondent State submits that Mr. NOCA Dino is taking advantage of
his own wrongdoing or more specifically of the fraud in his claim.
109. The Respondent State in fact further indicates that as the case
referred by the ruling of the Appeals Court to the Judicial Division of
the Supreme Court for the determination of the merits was the result
of the filing of the second appeal which the Supreme Court
considered as justified that brought about the second appeal, it was
19
20
only natural for it to be quashed in respect of Mr. NOCA Lucio, once
it was revealed at the Judicial Division of the Supreme Court that the
second appeal which was based on this second appeal was fraudulent
as it was filed on 3 May 1995 on behalf of Mr. NOCA Lucio whose
demise had occurred on 27 May,1992.
110. The Respondent State concludes by saying that it was therefore
natural that the successor of the deceased who claimed to have filed
an appeal should be kept out of the proceedings.
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111. The Respondent State claims that the Supreme Court’s action, the
reasoning of which is irreproachable in law, cannot at all be
considered as a violation of Article 7 of the Charter.
Complainant’s rebuttal on the Merits
112. The Complainant contends that while looking at the facts, the
Respondent State has itself outlined the process of putting the late
NOCA at a disadvantage by its officials.
113. The Complainant points out that following a request for land on
the 30th January 1984 submitted by Mr. KAFWA, then Public
Prosecutor in Bukavu, the Curator, who had all the same been
informed of the abrogation of Order n°1440/000152/80 of 3
September 1980 by Order n°1440/000207/82 of 20 September 1982
restoring the rights of Mr. Noca.
114. He notes that the Curator, by complying with an order that is
palpably illegal, later on 9 June 1984, established a registration
certificate volume F 82-folio 3, in the form of a title deed in favour of
Mr. KAFWA.
115. The Complainant points out the decision smacks of complicity
between the Governor of the region, the Curator of title deeds and
KAFWA. But he later indicates that later, the Minister of State in
charge of Landed Property instructed his Counsel Mr. MAMBOLEO
in the following terms: “… the Curator has issued a registration certificate
to citizen KAFWA KASONGO BIN KASENDE. As this registration
certificate has no legal basis, I request you to institute proceedings to have it
annulled”.
20
21
116. Then began the proceedings of the DRC against KAFWA joined by
the NOCA party for the triumph of justice and truth.
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117. The Complainant first of all underlines the fact that all the legal
actions to which the late NOCA had been a party or had had to
initiate, in the final analysis, had been to defend his interests and that
of his estate. He points out that at no time in the proceedings did any
court sitting on the merits or cassation find it necessary to raise
objection, which in principle cannot happen at this stage. No court has
ever dismissed the case of the late NOCA for want of quality, an
argument which cannot be brought up for the first time before the
Commission by the DRC.
118. The Complainant further indicates that in view of the legal
proceedings that the Respondent State had had to institute instead of
trying to defend itself against the violation of the African Charter by
its officials, for which reason it finds itself before the Commission, it
should have taken the lead and humbly acknowledged the injury
suffered by the petitioner and in addition propose means of arriving
at an amicable settlement of this dispute.
119. The Complainant alleges that concerning the sole argument
seeking the dismissal of NOCA’s appeal on the grounds that the
building is no longer the property of the late Mr NOCA and,
therefore, of his successor; we think it would be useful to have
recourse to constant jurisprudence in that contracts can only give rise
to actual obligations and cannot affect by themselves the transfer of
real rights, even between the contracting parties, and that the
conveyance of property can only stem from an entry into the
registration record13. This ruling by the Court of First Instance was
upheld by the Supreme Court14 .
120. The Complainant, in addition, underscored that this jurisprudence
has remained constant to this day, in spite of the divergence in
opinion with regard to the doctrine. On the grounds of this
jurisprudence, it was decided that only the holder of a registration
certificate can claim ownership of a building and the property shall be
deemed to belong to him as long as the transfer has not taken place. In
this particular case, the matter referred to the Commission by NOCA
13 1st inst. Elisabethville, 13 August 1926, in Droit et Jurispr. du Katanga, 2 e année, p.282
14 CSJ, RC 100, 3April 1976, Bull. Arr., p. 64
21
22
Dino, son and sole heir to the late NOCA Lucio, can only be
admissible because of the position of this jurisprudence.
121. Moreover, the Complainant argues, as indicated in the
memorandum on admissibility, that the African Commission does not
make legal formalism its pet subject; but that the most important
thing is to know whether the African Charter has been violated;
which has amply been demonstrated and recognized by the
Respondent State itself.
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122. The Complainant concludes by praying the Commission, in view
of the foregoing, to do justice to the Complainant’s request and to his
subsequent requests.
The Commission’s Analysis on the Merits
123. In the present Communication, the Commission seeks to determine
if the assignment of the Noca building to Mr. Kafwa Kasongo
constitutes a violation of Articles 3, 7.1(c) and 14 of the African
Charter.
124. The violation of Article 14 of the African Charter will first be
examined, given that this provision is the source of the other
violations.
125. Articles 3 and 7.1(c) will be examined together, given that both
articles were violated in the same circumstances of time and place.
Alleged Violation of Article 14
126. The Complainant argues that the decision taken by the Curator of
Title Deeds to issue the registration certificate of Mr. NOCA’s
building to Mr. KAFWA was a violation of Article 14 of the African
Charter.
127. Article 14 of the African Charter states that: “The right to property
shall be guaranteed. It may only be encroached upon in the interest of public
22
23
need or in the general interest of the community and in accordance with the
provisions of appropriate laws".15
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128. Before the Commission determines whether Article 14 was violated
in this present Communication, there is the need to ascertain who can
be the holder of a property right. Article 14 of the Charter does not
specify who the holder of the right of ownership is16. However, its
interpretation in the light of Article 2 of the African Charter17, and the
jurisprudence of the Commission18 clearly show, beyond reasonable
doubt, that every individual has the right to property under the
Charter.
129. In the present Communication, the victim, Mr. Noca, an Italian
national, alleges that his property was stolen under the pretext of the
execution of presidential measures referred to as economic measures
based on the Congolese law of 2 July 1974 relative to abandoned or
undeveloped property and other assets acquired by the State under
the law.
130. The Complainant affirms that in order to avoid the likelihood of his
building being declared as abandoned, thereby paving the way for its
transfer to Congolese nationals; his client had taken all the necessary
precaution by entrusting his building to SONAS before leaving the
DRC.
131. Notwithstanding this precaution taken by Mr. Noca, the
Complainant said the greed to grab the assets of foreigners motivated
some Congolese, in collusion with some State officials, to deceive the
authorities and declare NOCA’s building as abandoned through
Order No. 1440/000152/80 of 3rd September 1980.
132. The Complainant argues, however, that following the intervention
of SONAS which formulated favourable opposition in this regard and
which was accepted by the Minister responsible for landed property
and real estate matters, a decision was taken to formally exclude
NOCA’s building from the category of abandoned buildings as per
Order nº1440/000207/82 of 20th September 1982.
15 African Charter on Human and Peoples’ Rights, adopted on 27 June 1981, OAU
Doc.CAB/LEG/67/3 rev. 5, 21, I.L.M. 58 (1982), effective from 21 October 1986
16 Communication 225/98 Huri - Laws vs Nigeria, par 53
17 Article 2 of the African Charter stipulates that “every individual shall be entitled to the
enjoyment of the rights and freedoms recognised and guaranteed in the present Charter […]”.
18 Communication no 97/93, 2000-John K. Modise vs Botswana, par. 94
23
24
133. The Complainant further indicates that two years after the
annulment of the Order of 3rd September 1980, the President of the
Republic issued Ordinance No. 84-026 of 2 February 1984 repealing
the Ordinance relating to abandoned or undeveloped property and
other assets acquired by the State under the law.
134. The Complainant argues that, in spite of these repeals, the Registrar
of Land Titles took on the heavy responsibility of issuing to Mr.
KAFWA the registration certificate for Mr. NOCA’s building.
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135. The Respondent State argues that following a land application by
Mr. KAFWA, then State Prosecutor at the Bukavu High Court, the
Registrar of property titles proposed he should be allocated the
property formerly owned by Mr. NOCA, which was declared
abandoned on 3rd September 1980 and allocated on the same day to a
certain MATAKINA who, until the date of the proposal had not made
any payment into the public treasury.
136. In its response, the Respondent State claimed that at the time the
Registrar made the proposal, he was unaware that the 1980
Abandonment Order had been repealed by Order nº1440/000207/82
of 20 September 198219.
137. The Commission notes that though it is true that the
administration was unaware of the repeal and the opposition raised
during the procedure for registration and issuance of the title deed
and issued a title deed for a piece of land which already had a title
deed, it means that the State failed in its obligation to protect the
rights of foreigners living in its territory, and that the State could have
demonstrated good faith by reinstating the rights of the victim.
138. In any case, the Commission notes that the Head of the Lands
Department in the city of Bukavu received a copy of the annulment of
the Order declaring the NOCA building as abandoned, given that he
even requested the authentication of the document in his possession.
This request was made through telephone message No. 00027/84 of 5
July 1984 and letter No. 1.440/000748 of the same 5 July 1984, from
the Minister of Lands, then State Commissioner, confirming the repeal
of Order No. 1.440/000152/80.
19
See conclusion on the merits of Democratic Republic of Congo on this Communication, p2
24
25
139. The Commission also notes that even though the Head of the Lands
Department had requested authentication of the document, he did not
wait for the aforementioned responses, but proceeded with the
issuance of the registration certificate to Mr. Kafwa Kasongo.
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140. The Commission deplores the lack of diligence and goodwill on the
part of the Head of Division, who before the assignment of the Noca
plot of land, could have waited for the response of the Minister of
Lands in respect of the authenticity of the copy relating to the
annulment of the Order declaring the building as abandoned
property.
141. It is quite right that the Complainant cites jurisprudence according
to which only the holder of a registration certificate can lay claim to
the ownership of a building and the property is deemed to belong to
him as long as the transfer of property ownership has not been made.
142. On the argument of the Respondent State that due to the lack of
interest by the former owner to recover his property, the Commission
believes that for the owner to entrust the management of his building
to SONAS before leaving Zaire (now DRC) was a means for Mr.
NOCA to maintain his property a link with his property which
excludes lack of interest to recover his property as claimed by the
Respondent State.
143. The Commission notes that the right to ownership embodies two
key principles. The first is a general one which focuses on the
principle of the right of ownership and the peaceful enjoyment of
property. The second principle focuses on the possibility and
condition of deprivation of the right to property20. Article 14 of the
African Charter recognizes that States are authorized to violate it
under certain circumstances, particularly, to control the use of the
property in the public or general interest by administering laws which
are deemed necessary towards that end.
20 Communication 373/09: INTERIGHTS, Institute for Human Rights and Development in Africa,
and Association Mauritanienne des Droits de l’Homme vs. Mauritania, par 44
25
26
144. In Communication 276/2003 - Centre for Minority Rights
Development (Kenya) and Minority Rights Group International on
behalf of Endorois Welfare Council vs. Kenya (Endorois case), of May
2009, the Commission dealt at length with the right to ownership and
established a two-pronged criterion which sets out that this right
cannot be violated except “in the interest of the public or in the general
interest of the community” and “in conformity with the provisions of the
appropriate laws 21”; this latter aspect referring to domestic and
international laws22.
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145. At the same time, the Commission has indicated that the limitations
to the right to property should be determined in the light of the
principle of proportionality, meaning that interference in the right to
property must be “proportional to a legitimate need, and should represent
the least restrictive measure possible23”. That is not the case for the
Communication under review.
146. Moreover, in the situation depicted in the present Communication,
the Commission notes that the State has not demonstrated that the
Complainant’s building was confiscated in the interest of public need
or general interest. The deprivation was done without any legal basis
as the Respondent State itself had taken so many decisions on the
same building in the interest of the Complainant.
147. Without such a justification and adequate compensation
determined by an impartial court of competent jurisdiction, the
African Commission believes that the actions of the Respondent State
are in violation of the right to property guaranteed by Article 14 of the
African Charter24.
148. On the defence of the Respondent State that it was no longer
admissible for the interested parties to claim before the court property
whose ownership was finally and legally vested in the applicant
under Article 227 of the Land Law which provides that the
registration certificate is an absolute proof of ownership of buildings,
the Commission believes that it is never too late to stop any violation
and make reparation for its consequences.
21 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on
behalf of Endorois Welfare Council vs. Kenya, Communication no 276/2003, May 2009, par. 211.
22 Ibid., par. 219.
23 Ibid., par. 214
24 Cf Huri-Laws vs. Nigeria, above para 53
26
27
149. The Commission notes that the Respondent State is not contesting
the repeal of the Order of 3rd September 1980 as well as the
Ordinance of 2nd July, 1974, texts which are the basis for the
withdrawal of the disputed building from the inheritance of Mr.
Noca.
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150. The Commission believes these two repeals fully consolidated the
ownership right of Mr. NOCA to the above mentioned building;
given that after the repeal, the Order declaring the Noca building an
abandoned property became null and void.
151. The Commission, from a legal standpoint, further believes the
annulment of the two Orders ought to result either in the annulment
of the Title Deed issued on the basis of these two repealed texts,
therefore dubiously obtained or the restoration of a duly obtained
Title Deed by Mr. Noca.
152. The Commission further argues that the fundamental rights
guaranteed by the Charter are based on procedural rules for their
effective enjoyment. The application of these procedural rules giving
effect to the enjoyment of those rights should be followed in that, in
the present case, their misapplication can deny the fundamental
rights, thus leading to the limitation or deprivation thereof.
153. The Commission, based on the two repeals, concludes that there
was culpable negligence or a wilful misconduct on the part of the
Curator of Title Deeds.
154. The Commission believes that the Title Deed issued on the basis of
repealed texts, therefore non-existent, is itself non-existent, and
without any effect.
155. The Commission recalls the principle enshrined in Article 1 of the
Charter, according to which States Parties not only recognize the
rights, obligations and freedoms proclaimed in the Charter, but also
undertake to respect them and to take steps for their
implementation. In other words, if a State Party cannot ensure respect
27
28
of the rights contained in the African Charter, this constitutes a
violation of the Charter25.
156. The Commission, in Communication n°155/96 on the Ogoni case,
adopted an integral approach, notably pertaining to the correlative
obligations of the State. The Commission has insisted on the
responsibility of States to protect their citizens “not only by enacting
appropriate legislation and by applying them effectively, but also by
protecting the said citizens from prejudicial activities which may be
perpetrated by private parties26”.
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157. The Commission points out that from its jurisprudence: […] All
rights, civil, political, social and economic, create at least four levels of
obligations for a State which undertakes to adopt a system of rights, in
particular the responsibility of respecting, protecting, promoting and
fulfilling these rights. These obligations are universally applied to all the
rights and impose a combination of negative and positive responsibilities27.
158. The Commission further considers that it is the duty of States to
investigate and remedy violations under the general obligations
incumbent on them pursuant to Article 1 of the African Charter on
Human and Peoples’ Rights which provides that States must adopt
legislative or other measures to implement the rights, duties and
freedoms enshrined in the Charter. “They need to prevent acts that
violate any right recognized by international human rights law,
investigate such acts or punish the perpetrators”.28
159. The Commission further believes that it is the obligation of the
Respondent State to respect the right to property. For the African
Commission, the right to property set out in Article 14 of the Charter
relating to land and housing, implies in particular, the protection from
arbitrary deprivation of the enjoyment of property rights, adequate
compensation for public acquisition, nationalisation or expropriation,
25 Communication 74/92 National Commission on Human Rights and Freedoms vs. Chad, para.
35
26
Communication no 155/96 - Social and Economic Rights Action Center, Center for Economic
and Social Rights vs. Nigeria, par. 57
27 Malawi African Association and Others vs. Mauritania, Communications nos 54/91, 61/91,
98/93, 164/97 to 196/97 and 210/98, 2000
28 Communication° 155/96: Social and Economic Rights Action Center (SERAC) and Center for
Economic and Social Rights (CESR) vs. Nigeria, § 44 - 48
28
29
peaceful enjoyment of property and protection from arbitrary
eviction29.
160. This obligation prohibits States from interfering arbitrarily in the
enjoyment of property rights. Expropriation without legal grounds or
which is not performed in the public interest is an example of breach
of the obligation to respect the right to property.
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161. It is also noteworthy that the Commission has an independent and
broad conception of the right to property, particularly in
Communication n° 276/03, Centre for Minority Rights Development
(Kenya) and Minority Rights Group (on behalf of Endorois Welfare
Council) vs. Kenya -the Ogoni case, where it held that “the right to
property includes not only the right of access to one’s property
and freedom from violation of the enjoyment of such property or
injury to it, but also the free possession and utilization and control of
such property, in a manner the owner deems adequate”30.
162. The Commission feels that the State is obliged to protect the
holders of rights against other subjects, by legislation and the
provision of effective remedies. This obligation requires the State to
take measures to protect beneficiaries of the protected rights against
political, economic and social interference. Protection generally entails
the creation and maintenance of an atmosphere or a framework
through an effective interplay of laws and regulations, so that
individuals can freely exercise their rights and freedoms. This is
inextricably linked to one of the obligations of the State which consists
in promoting the enjoyment of all human rights31.
163. The Commission further believes that by adopting laws on
abandoned properties, the State should have taken all the necessary
measures to ensure that there would be no misapplications
whatsoever of these laws to the extent of arbitrarily and unjustly
depriving an individual for the benefit of another.
164. On the argument advanced by the Respondent State that Mr Noca’s
successor cannot lay claim to a property which no longer belonged to
his father, the Complainant in his reply points out that the purpose of
29
Declaration of Pretoria on Economic, Social and Cultural Rights in Africa, item 5
30 Communication n° 276/03, Centre for Minority Rights Development (Kenya) and Minority
Rights Group (on behalf of Endorois Welfare Council) vs. Kenya, §186
31 Communication° 155/96, par 46
29
30
all legal actions, in which the late NOCA was involved or initiated,
were to defend his interests and that of his successors, and that at no
time of the procedure did the Congolese State raise such an exception,
which in principle cannot be done at this stage.
165. The Commission should seek to know, considering the argument
advanced by the Respondent State, whether or not the Complainant is
the holder of the disputed property in order to claim ownership
thereof.
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166. The Commission notes that, based on the provisions of Section 235
of the said Congolese Land Law which provides that: "Except in cases
where the transfer is ordered by the courts or in cases based on specific
legislation no transfer may be made until after delivery to the Curator of the
certificate in replacement. In all cases of transfer, the old certificate entered in
the registration book shall be marked with a cancellation stamp and a
notation indicating, in the form established by Article 226, the reasons for
the cancellation and the date and number of the new certificate”, only the
holder of a registration certificate duly established can lay claim to
property in the form of a building and the property is expected to
belong to him for as long as possible that the transfer would not have
occurred.
167. Except for the presentation of a certificate which would have been
drafted by the NOCA succession, the Respondent State, has not
proved the existence of the sales contract or proved that the transfer of
ownership had indeed taken place.
168. The Commission further reminds the Congolese State that at no
time during the proceedings was Dino Noca’s lack of interest
raised. Neither the lower courts nor those of appeal had ever rejected
the late NOCA or the State of DRC for lack of interest.
169. The Commission takes note that Mr. Noca has brought several
actions in real estate to claim his right to property without winning
his case.
170. The Commission, based on the property management agreement
concluded in due and proper form between Mr. Lucio Noca, owner of
the building, and SONAS, before Mr. Lucio Noca left the DRC to
prevent it from being considered abandoned property, including
all steps taken by him before he died and by his son after the death of
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the owner for the return of the property in the Noca heritage, are a
proof of the interest that Mr. NOCA had in the building.
171. Furthermore, as far as the Commission is concerned, to admit that a
person, in this case the son of the deceased, would recognize the sale
of his father’s plot of land to a third party and still continue to bear
the expenses and transportation costs of his counsel to pursue the
case, in the absence of any grounds in this particular case, is an
inconceivable fact.
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172. The Commission further notes that there was no reaction from the
alleged purchaser, and that the argument of the Respondent State that
the building had long ceased to be part of the estate of Mr. Noca, who
may have sold it to Mr. KASILEMBO, who himself withdrew from the
case, is not admissible given that the administration had at the same
time recognized the property right of Mr. Noca to the disputed
property.
173. The Commission ultimately concludes that given the proven
misconduct of the administration, resulting in particular from an
irregularity committed in the procedure for granting the title deed
that was still in the inheritance of Mr. Dino Noca, the Respondent
State has indisputably violated Article 14 of the African Charter.
Alleged violation of Articles 3 and 7 1.c
174. The Complainant alleged that the decision taken by the Supreme
Court in Judgment RC029/TSR prohibiting the NOCA party from
presenting its defence and the decision by the latter Court rejecting
the resumption of proceedings by the Noca succession and the thirdparty opposition violated the principle of Articles 3 and 7.1c of the
Charter.
175. Article 3 stipulates that: “Every individual shall be equal before the
law. Every individual shall be entitled to equal protection of the law”.
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176. Article 7.1c for its part provides that "Every individual shall have
the right to have his cause heard. This right includes the right to
defence and the right to be defended by counsel of one’s choice”.
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177. The Complainant alleges that the disputed decision was motivated
in these terms: “regarding the third-party opposition and the pursuance of
the suit, the Court rules that the Judgement RC029/TSR having been
declared inadmissible, the joint appeal of 3rd May 1995 as emanating from
Mr. NOCA Lucio who passed away on the 27th May 1992, the issue is
definitively settled since the Judgement RAC/001 of 29 December 1994 of the
Kinshasa/Matete Appeals Court which had acquired competence of the case
had irrevocably judged against the NOCA Lucio successors. Consequently,
the pursuance of the suit should not have been prescribed”.32
178. In this communication, the victim complained of not having had
the opportunity to present his defence. After the death of Mr. Lucio
NOCA, biological father of Dino NOCA, the Supreme Court found it
necessary to call the Noca succession to the trial to allow him to
present his defence so that his rights in the disputed property are
protected in the same way as those claimed by Mr. Kafwa on the same
property.
179. The Complainant emphasizes that by Judgment No. RCR/C 019 of
14 July 2000, the Supreme Court summoned the entitled beneficiaries
of the late NOCA to continue the proceedings.
180. Moreover, the Complainant adds that the pursuance of this lawsuit
was decided on the following grounds: “since Mr. NOCA’s successors
in title were not informed of the current proceedings, they cannot be
presumed to have withdrawn from pursuing the lawsuit”.
181. The Complainant argues that despite his determination to pursue
the proceedings, the Supreme Court did not give him that
opportunity because it reversed its decision on the continuation of the
lawsuit, by nullifying it for the reason that the issue is definitively
settled since the Judgement RAC/001 of 29 December 1994 of the
Kinshasa/Matete Appeals Court which had acquired competence of
the case had irrevocably judged against the NOCA Lucio successors.
182. The Complainant alleges that the right to equality before the courts
guaranteed by the Charter was violated by the Supreme Court, given
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Supporting evidence No. 38-92
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that only the arguments of Mr Kafwa, the other party, were
considered as opposed to those of Mr Noca who was refused from
pursuing the case.
183. The Respondent State states for its part that the approach of the
Supreme Court whose reasoning is impeccable in law can in no way
be regarded as a violation of Article 7 of the Charter.
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184. For the Respondent State, the referral of the case to the Judicial
Division of the Supreme Court for the determination of the merits was
only the consequence of the second appeal, which having been
deemed to have grounds by the Supreme Court, had recognized a
second referral; and it was only natural for it to be invalidated in
respect of Mr. NOCA Lucio, since it became clear before the Judicial
Division of the Supreme Court that the second appeal which
necessitated the second referral was fraudulent given that it was filed
on 3rd May,1995 on behalf of Mr. NOCA Lucio who passed away on
27 May 1992.
185. The Commission recalls that though the complainants decided to
pursue the lawsuit, they only used the opportunity offered them by
the Congolese State which had observed many irregularities in the
administration of justice in the Noca case.
186. The right to a fair hearing is based on key elements including in
particular the principle of equality of arms for the parties to the case,
whether administrative, civil , criminal or military33, the opportunity
to properly prepare the defence, to present arguments and evidence
and to respond to the arguments and evidence of the prosecution or
the defendant34.
187. Pursuant to Article 7.1.c of the Charter, anyone who feels that his
rights have been violated has the right to bring his case before the
relevant national courts. Thus, the position or status of the victim or
those of the alleged perpetrator do not matter. This means that any
person, whose rights have been violated, including by persons acting
in their official capacity, should be entitled to an effective remedy
Directives and principles of the African Commission on the right to a fair trial and legal
assistance in Africa, Item A.2(a).
34 Idem, Item A.2(e)
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33
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before a competent and impartial judicial body and enjoy the right to
have his case heard without any discrimination.
188. The States Parties to the African Charter thus have a duty to
ensure that the judicial organs are accessible to all and that all parties
have the opportunity to present their defence in a fair manner.
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189. The Commission notes that the title deed is an administrative act
likely to be brought before the Judge and can constitute the object of
an appeal against abuse of power if it has been fraudulently
established other than as a result of a flaw which happened during
the registration procedure.
190. The right to be heard requires that the Complainant has unfettered
access to a court having jurisdiction to hear his case. It also requires
that the matter be brought before a court having jurisdiction to hear
the case. A competent court to hear a case in law is so empowered by
the law.
191. The Commission provided clarification on Article 7 in the Kenneth
Good vs. Republic of Botswana case, in which it asserted that the right
to be heard requires that the Complainant should enjoy unrestricted
access to a court of competent jurisdiction to have his case heard35.
192. The Commission believes that when the authorities put
impediments in the way to prevent victims from having access to
competent courts, they deprive victims of their right to have their case
heard.
193. In the case of the Zimbabwe Human Rights NGO Forum vs.
Zimbabwe36, the Commission noted that the protection afforded by
Article 7 is not limited to the protection of the rights of persons
arrested and detained but it includes the right of everyone to have
access to relevant judicial bodies with jurisdiction to hear their case
and grant them adequate compensation.
194. The Commission regrets that after having taken the right decision
to reopen the proceedings, the Supreme Court reversed its decision by
prohibiting the NOCA party from presenting its defence and rejecting
35
36
Communication 313/05 - Kenneth Good vs. Republic of Botswana, par 169
Communication 245/2002 - Zimbabwe Human Rights NGO Forum vs. Zimbabwe
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the resumption of proceedings by the Noca succession decided by
itself and the third-party opposition.
195. The Commission believes that though the Respondent State noted
that the second appeal which prompted the second referral was
fraudulent, the Supreme Court should not have rejected the
pursuance of the lawsuit, the only remedy available to the victim to
claim his building.
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196. The Commission also believes that in such circumstances, if the
Court thought it had erred in allowing the NOCA party to pursue the
lawsuit whereas there was an existing ruling that had acquired the
force of a judgement delivered, and also that the second appeal was
granted on the basis of a fraudulent act, it was obliged to re-open the
proceedings in order to notify the Noca party about the facts.
197. The Commission believes that the final judgment which rejected an
obligation to reopen the proceedings to hear the position of Dino
Noca therefore deprived him of the right to have his case heard.
198. The Commission moreover believes that the Supreme Court did not
offer the basic procedural safeguards. Its decision cannot have
legitimacy when both sides have not been heard with due respect for
the principle of equality of arms, which would have allowed the
parties to discuss the issue of continuing with the proceedings.
199. In such circumstances, the Commission can only endorse the claims
of the Complainant according to which the decision of the Supreme
Court to exclude the NOCA party from the proceedings without
giving him the opportunity to present his defence and without
examining the consequences of such action on his request does not
comply with the requirements of the African Charter and the general
principles of law.
200. The Commission considers that the argument advanced by the
Respondent State to justify the position taken by its own courts is
inconsistent with the obligations of the Respondent State to comply
with Article 7 of the Charter.
201. The Complainant also alleges a violation of Article 3 of the Charter
which deals with the right to equal protection of the law and equality
before the law. For the parties to a case, these rights entail access to
equal opportunity in the preparation and presentation of their
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arguments. In other words, they must be able to defend their case
before the court on an equal footing.
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202. In the Communication Zimbabwe Lawyers for Human Rights and
Institute for Human Rights and Development in Africa vs. Republic of
Zimbabwe37, the African Commission relied on the decision of the
Supreme Court in the case Brown vs. Board of Education of Topeka38, in
which Chief Justice Earl Warren of the United States of America
argued that “equal protection by law refers to the right of everyone to
have equal access to courts of justice and to be treated the same way
by the courts, both for procedures and for the essence of the law. It is
akin to the right to due process of law, but applies in particular to
equal treatment as an element of fundamental equity”.
203. The Commission considers that this attitude of the Supreme Court
is in contradiction with the principles of the right to equality before
the law and the right to defence and thus infringes Articles 3 and
7. 1.c of the African Charter on Human and Peoples' Rights in the
sense that firstly the succession of Noca Lucio represented by its legal
liquidator Mr. Dino Noca could not present its defence and secondly
the principle of equality of litigants was not respected since only the
defence of the opposing party, in this case Mr Kafwa, was taken into
account.
204. In its analysis of the situation in the light of the arguments
presented by the parties, the Commission considers that Articles 3, 7.1
(c) and 14 of the African Charter have been violated.
205. The Complainant finally prays the Commission to prescribe to the
Respondent State to grant him, as compensation for damages
suffered, the minimum sum of USD 400 000, including fees paid to
lawyers.
206. The Commission, while acknowledging that the Complainant has
certainly suffered damages relating to his right of ownership of the
disputed building for several years (28 years), however notes that it is
not in possession of sufficient facts to quantify the damages suffered.
Communication 294/04 - Zimbabwe Lawyers for Human Rights and Institute for Human Rights
and Development in Africa (on behalf of Andrew Barclay Meldrum) vs. Zimbabwe, para 104
38
Idem
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207. Therefore, in the name of fairness and in light of its jurisprudence 39,
the Commission recommends that the amount of compensation
should be determined by the laws of the Democratic Republic of the
Congo.
Decision of the Commission
The Commission:
Notes that the Democratic Republic of the Congo has violated the
provisions of Article 3, Article 7.1 (c) and Article 14 of the Charter;
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Declares that the transfer of the Noca family building to a third party
by the State on the basis of repealed texts is in violation of Article 14
of the African Charter;
Thus declares that Judgment RCR/C019 of 28 November 2003 is in
violation of Articles 3, 7.1 (c) of the African Charter;
Enjoins the DRC to restore the right to property of the beneficiaries of
the late Mr Noca by reinstating their title deed of the disputed
building, or failing that, pay them expeditious, just and fair
compensation;
Finds that the DRC should compensate without delay for the damages
suffered by the Dino Noca family in accordance with the DRC laws in
force;
Declares that the Respondent State should present within a period of
180 days, with effect from the notification of this decision, a detailed
report on the measures taken to implement this decision.
Done in Yamoussoukro, Côte d’Ivoire, at the 52nd Ordinary Session of the
African Commission on Human and Peoples’ Rights held from 9 to 22 October
2012.
39
Communication 253/02 Antoine Bissangou vs. Republic of Congo, para 83
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