Court dismisses an application by AG Rwanda seeking to strike out amended pleadings in the Union Trade Centre case

East African Court of Justice, Arusha, 29th March 2018; As court adjourns its sessions the First Instance Division dismissed a matter (Application) filed by the Attorney General (AG) of the Republic of Rwanda (Applicant) against the Union Trade Centre (UTC)(Respondent) over the amended pleadings allegedly to have introduced a new cause of action in the main case (Reference No. 10 of 2013), challenging the government of Rwanda over an allegation of appropriating the private property of UTC Mall, as an infringement of the Treaty for the establishment of the East African Community.

The new cause of action in dispute as filed by the AG Rwanda was, where the Rwanda Revenue Authority (RRA) auctioned / sold the UTC Mall to another private company on 27th September 2017, due to unpaid taxes that had accumulated. On 15th November 2017, court granted leave to Union Trade Centre to amend its original reference to include the same issue.

The Court in its ruling read by Justice Dr Charles Oyo Nyawello, said that, court after examining the arguments by both parties in the previous session, Court found that the amended Reference did not introduce new cause of action deserving a separate Reference all together and based on this finding, court dismissed the Application and said it is set for the hearing of the main case (The amended Reference)

During the hearing on 24th January 2018, UTC represented by Mr Isaac Bakayana in his argument defending his position, said that the amended Reference did not introduce a new cause of action because the actors (Nyarugenge District Commission in charge of management of the abandoned property & Rwanda Revenue Authority) from the beginning to the end, were both agents of the Government of Rwanda. He also argued that the Attorney General consented to the amendments when the issue of auctioning the UTC Mall came in and that when it was brought before the Court in November 2017 requesting the Court to allow them to amend the pleadings, so that such, is taken into account. He added that the Attorney General heard the submissions and did not oppose the amendments and they were aware of the facts seeking to be introduced.

Mr Bakayana also referred the Court to Rule 48 of the Court’s rules of procedure and stated that, the rule mentioned above, permits the Court to allow any party to amend any pleadings in such a manner it may direct and when the matter of auctioning the mall came up, the court allowed UTC to amend their pleadings. He further submitted that, rule 50 (c) of the EACJ Rules of procedure, allows to add or substitute anew cause of action if the new cause of action rises out of the same facts. It’s therefore the Respondent’s (UTC) contention that the government of Rwanda has appropriated private property. Furthermore, Bakayana said that, it has been the allegation since 2013 and therefore the fact of Rwanda Revenue Authority selling of the property after the government had been taken to court for illegal taking over the mall and managing it, is a continuous of the allegation they are complaining against.

Bakayana also contended that, the Claimant (UTC) has the right to his property and the right was violated since 2013 and the Attorney General is liable.

On his part the AG Rwanda represented by Mr Nicholas Ntarugera, argued that, the Reference has been on record of the Court since 22 November 2013, that the matter in question or complained of was that, this Court declared that the action of Nyarugenge District Commission in charge of management of the abandoned property, for taking over and managing the UTC Mall contravened Articles 5 (2) (g), 5 (3)(g), 6(d) 7(1) and others of the Treaty. He also said that the first Cause of action a rose on 27th July 2013, when the Commission addressed a letter to the tenants who occupied the Mall.

Mr Ntarugera added that, under the cover of amending the matter, UTC filed a new Reference by introducing a new cause of action of where the Rwanda Revenue Authority (RRA) auctioned/ sold the UTC Mall to another private company in on 27th September 2017, due to unpaid taxes that had accumulated, which the AG found that it violated the principles of amending the pleadings. Counsel also argued that at the moment the UTC Mall no longer belongs to UTC neither Nyarugenge District Commission in charge of abandoned property, on grounds that it has been auctioned by RRA to another private Company and that Rwanda Revenue Authority (RRA) is an independent Institution that possess its legal personality, it can sue and be sued in its name but nor through the Attorney General. He further argued that the 2nd amended Reference is composed of two (2) cause of action that a rose on different periods of time, by different bodies and on different grounds. Ntarugera went ahead and explained that, the 2nd cause of action a rose after four (4) years after the Reference was already before this Court.

On the part on the Interveners represented by Mr William Arnest Kivuyo, associated their views with the AG Rwanda and submitted that, the new cause of action has been introduced and it contravenes the rule 50 (2) of the EACJ rules of procedure. He further said that, the issue of auctioning the UTC Mall was done by a different party, Rwanda Revenue Authority and done on a different dates. Mr Kivuyo stated that, taking over and managing the property, the status and the shareholders did not change, only the management changed, but auctioning the property even the ownership changed. He therefore said that it cannot be treated as the same facts. He told court that the 2nd amendment introduces the new cause of action and contravenes the principles of law and should be struck out

The three Interveners are: Succession Makuza Desire, Succession Nkurunziza Gerald and Ngofero Tharaisse who are shareholders in UTC Limited.

Court after examining the above arguments came up with the ruling in favour of the (UTC Respondent) and the case will be scheduled for hearing on notice.

The ruling was received by the William Arnest Kivuyo for the Interveners and Mr David Sigano representing the Respondent (UTC). The First Instance Division has adjourned its sessions till 2nd quarter when it will resume.

Notes to the Editors

Article 5 2 (g) of EAC Treaty states that; the enhancement and strengthening of partner ships with the private sector and civil society in order to a achieve sustainable socioeconomic and political development;

Rule 48 of EACJ Rules of procedure states that; For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any pleading, a party may amend its pleading.

Rule 50 1 (c) of EACJ Rules of procedure 2013 states that; where the amendment adds or substitutes a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed by the party seeking leave in the same case.

Rule 50 (2) of EACJ Rules of procedure states that; The Court may, in the following circumstances, grant such leave to amend notwithstanding that any relevant period of limitation current at the date of instituting the case has expired, if it thinks it is just so to do:

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.

Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The Court’s sub-registries are located in the respective National Courts in the Partner States.

For more information please contact:
Yufnalis Okubo, Registrar, East African Court of Justice. Tel: 255-27-2162149
Email Okubo@eachq.org
East African Court of Justice
Arusha, Tanzania
http://www.eacj.org

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