East African Court of Justice Arusha, 21 September 2016: The First Instance Division heard a matter filed on 20th November 2015 by Mr. Manariyo Desire (Burundi citizen) versus the Attorney General of the Republic of Burundi. The Applicant’s complaint is that the Government of Burundi has failed to abide by its commitment to the fundamental operational principles it has committed to under the Treaty, specifically the principles of the rule of law, good governance and the recognition and protection of the human rights of the Applicant, especially his right to property and to peaceful enjoyment of property that he lawfully owns.
The Applicant alleges that sometime back in 1977, he had bought three pieces of land from Mr. Nzopfabarushe Simon, Mr. Habinimana Andre and Ms. Nizonzima Scholastique. In 1999 the Applicant and the above-mentioned three sellers, had their sale transactions authenticated before the Tribunal of Residence of Musaga, in Bujumbura and they procured from that Tribunal an authenticated contract, through an attested Affidavit. In 2010, Mr. Nzopfabarushe filed a suit in the Tribunal of High Instance of Bujumbura, against the Applicant, laying claim on the land that he had sold to the Applicant, and which was subject to the authenticated affidavit at the time of sale of the piece of land.
In 2012 the Tribunal delivered its judgment of the matter in favor of Mr. Nzopfabarushe and the Applicant was not satisfied with the decision he appealed to the Court of Appeal of Bujumbura, praying that it reverses the judgment of the Tribunal of High Instance and to recognize his legitimate property rights on the said land, based on the evidence he had produced, especially the authenticates Bill of Sale, that is the attested Affidavit. On October 2013, the Court of Appeal delivered it judgment and upheld the judgment of the Tribunal of High Instance.
The applicant went further and filed a petition before the Cessation chamber of the Supreme Court, invoking many grounds for violations of Burundian law, in particular the refusal by the Court of Appeal to recognize the legal and probative value of the attested affidavit. However, the Cessation Chamber of the Supreme Court dismissed the Applicant’s petition.
Mr. Donald Deya representing the Applicant in Court, submitted that the failure or refusal by the Respondent through the judgement of the Supreme Court of Burundi on 24th June 2015 to recognize the the legal and property value of the attested affidavit No 356/99 of 27th July 1999 was in violation of the commitment of the Respondent among others Articles 6 (d), 7 (2) of the Treaty and 15 (1) of the Common Market Protocol as well as Article 14 of the African Charter on Human and Peoples’ rights .
He further added that the case was filed on time, so it is not time barred and that the Court has jurisdiction to determine the matter because it has authoritatively established such jurisdiction in superior jurisprudence both the First Instance and Appellate Division. That the failure to recogonise the legal and property value of the attested affidavit is unlawful and violated the Applicant’s rights under National law, EAC Law and African Union Law.
Mr. Deya also stated that the trial in High Instance of Bujumbura was not fair and that it had several irregularities. That the Applicant was never called for the hearing he only received the judgement and learnt that the witnesses gave evidence and he never got the chance to cross examine them. He said that the High Instance could not have pronounced itself to the attested affidavit. The Applicant’s advocate finally asked Court to declare that the Respondents actions and omissions are unlawful and they are an infringement of the Treaty provisions mentioned above. Also the Court to declare that the Applicant’s property rights have been violated by the Government of Burundi and as well as the order for reinstitution an order directing the Respondent to restore the property rights of the Applicants and allow the Applicant to take his three sell agreements to consolidate them and get one title. Also the Court to order the Respondent to issue a report within 60 days on the residue mechanism it will have provided. The court also asked for costs to be met by the Respondents of this Reference and other orders as it may deem to be just in the matter. He added that the Applicant’s right to peacefully enjoy his property was violated and he is entitled to the remedies sought.
In response Mr. Elisha Mwansasu the Senior State Attorney representing the Attorney General of Burundi submitted that the matter is time barred because it was not filed within two months time limit as it is provided in Article 30(2) of the Treaty which states that: “The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be;”. He added that the matter was filed on 20th November 2015 more that 2 months after the decision of the legality of the Attested Affidavit of 1999 being complained of.
The respondent also urged that the Court has no jurisdiction to hear the matter as it does not have appellate jurisdictions over decisions of the Supreme Court of the Partner states as provided under Articles 27(2) and 30(3) of the Treaty. He asked the Court to dismiss the matter with costs.
Court will deliver its judgement on notice.
The First Instance Division bench was composed of Honorable Judges Lady Justice Monica Mugenyi (Principal Judge), Justice Isaac Lenaola (Deputy Principal Judge), and Justice Audace Ngiye.
Notice for editors:
Articles 27(2) provides that: “The Court shall have such other original, appellate, human rights and other jurisdiction a s will be determined by the Council a t a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction and
Article 30(3) provides that; “The Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or act ion ha s been reserved under this Treaty to an institution of a Partner State.”
About the EACJ
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.
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East African Court of Justice