Wakilii

Noca v Congo (Communication 286 of 2004)

African Commission on Human and Peoples' Rights · [2012] ACHPR 10 · 2012 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from property deprivation
Decision
The Commission found violations of the African Charter and ordered the DRC to restore the complainant's property rights or pay compensation, and to compensate for damages suffered.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that the Democratic Republic of the Congo violated Articles 3, 7.1(c), and 14 of the African Charter. The State violated the right to property by issuing a title deed to a third party based on repealed legislation declaring the complainant's building abandoned, despite prior orders restoring the complainant's rights. The State also violated the rights to equality before the law and to be heard by reversing a Supreme Court decision allowing the complainant to continue proceedings, thereby denying him the opportunity to present his defence.

Outcome

The Commission found violations of the African Charter and ordered the DRC to restore the complainant's property rights or pay compensation, and to compensate for damages suffered.

Facts

Mr. Lucio Noca, an Italian national, owned a building in Bukavu, DRC, covered by a registration certificate issued in 1952. Before leaving the DRC, he entrusted management of the building to SONAS, a state insurance company, to avoid its classification as abandoned property under a 1974 ordinance. Despite this, the building was declared abandoned in 1980 and allocated to Mr. Kafwa Kasongo, then State Prosecutor. SONAS successfully appealed, and the abandonment order was repealed in 1982. The 1974 ordinance itself was repealed in 1984. Nevertheless, the Curator of Title Deeds issued a registration certificate to Mr. Kafwa in June 1984, before receiving confirmation of the repeal. The DRC initiated proceedings to annul Mr. Kafwa's certificate but was unsuccessful in domestic courts. Mr. Lucio Noca died in 1992 during ongoing litigation. The Supreme Court initially ordered his successor, Dino Noca, to continue the proceedings, then reversed this decision and excluded him from presenting his defence.

Issues

  1. Whether the Democratic Republic of the Congo violated Article 14 of the African Charter by depriving the complainant of his property right through the issuance of a registration certificate to a third party based on repealed legislation.
  2. Whether the Democratic Republic of the Congo violated Articles 3 and 7.1(c) of the African Charter by denying the complainant the right to be heard and equal protection before the law when the Supreme Court reversed its decision to allow the complainant to continue proceedings.

Orders

  • The Democratic Republic of the Congo violated Articles 3, 7.1(c), and 14 of the African Charter.
  • 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.
  • Judgment RCR/C019 of 28 November 2003 is in violation of Articles 3 and 7.1(c) of the African Charter.
  • The DRC is enjoined 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.
  • The DRC should compensate without delay for the damages suffered by the Dino Noca family in accordance with DRC laws in force.
  • The Respondent State should present within 180 days from notification of this decision a detailed report on the measures taken to implement this decision.

Rules and key headnotes

Right to Property — Arbitrary Deprivation — State Obligation to Protect
The right to property under Article 14 of the African Charter may only be encroached upon in the interest of public need or the general interest of the community and in accordance with appropriate laws. A State violates this right when it deprives an individual of property without legal basis and without demonstrating that the deprivation serves a public or general interest.
Title Deeds — Validity — Issuance Based on Repealed Legislation
A title deed issued on the basis of repealed legislation is itself non-existent and without legal effect. Where administrative orders declaring property abandoned have been repealed, any subsequent transfer of that property based on those repealed orders is void.
State Responsibility — Duty to Protect Rights — Negligence of Officials
States have an obligation not only to respect the rights guaranteed in the African Charter but also to protect rights holders from prejudicial activities by private parties and from misconduct by state officials. Culpable negligence or wilful misconduct by state officials in the administration of property rights constitutes a violation of the Charter.
Right to Be Heard — Access to Courts — Reversal of Procedural Orders
The right to be heard under Article 7.1(c) of the African Charter requires that parties have unfettered access to competent courts and the opportunity to present their defence. Where a court orders a party to continue proceedings and then reverses that decision without reopening proceedings to hear the party's position, it violates the right to be heard.
Equality Before the Law — Equality of Arms — Procedural Fairness
The right to equality before the law under Article 3 of the African Charter requires that parties to a case have equal opportunity to prepare and present their arguments. A court violates this right when it considers the defence of one party while denying the other party the opportunity to present its case.

Legislation cited (13)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 7.1(c)
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • Ordinance No. 74-152 of 2 July 1974 (DRC)
  • Order No. 84-026 of 2 February 1984 (DRC)
  • Congolese Land Law s.227
  • Congolese Land Law s.235
  • Constitution of the DRC Article 36
  • Constitution of the DRC Article 37

Cases cited (14)

  • Social and Economic Rights Action Center v Nigeria (Communication 155 of 1996)
  • Inter African Human Rights Union v Angola (Communication 159 of 1996)
  • Huri-Laws v Nigeria (Communication 225 of 1998)
  • Modise v Botswana (Communication 97 of 1993)
  • Centre for Minority Rights Development v Kenya (Communication 276 of 2003)
  • National Commission on Human Rights and Freedoms v Chad (Communication 74 of 1992)
  • INTERIGHTS v Mauritania (Communication 373 of 2009)
  • Good v Botswana (Communication 313 of 2005)
  • Zimbabwe Human Rights NGO Forum v Zimbabwe (Communication 245 of 2002)
  • Zimbabwe Lawyers for Human Rights v Zimbabwe (Communication 294 of 2004)
  • Bissangou v Congo (Communication 253 of 2002)
  • Brown vs. Board of Education of Topeka
  • 1st inst. Elisabethville, 13 August 1926, in Droit et Jurispr. du Katanga, 2 e année, p.282
  • CSJ, RC 100, 3April 1976, Bull. Arr., p. 64

Full judgment

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Noca v Congo (Communication 286 of 2004) [2012] ACHPR 10 (22 October 2012)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.