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EACJ will not extend the Time Limit Set for Instituting References by Legal and Natural persons under the Treaty.

The EACJ will not extend the Time Limit Set for Instituting References by Legal and Natural persons under the Treaty.

Mr. Audace Ngendakumana v the Attorney General of the Republic of Burundi.

Monica Mugenyi,PJ; Isaac Lenaola, DPJ; Fakihi A.Jundu, J

November 27, 2015

Reported by Linda Awuor & Faith Wanjiku

Download the Decision

 

Brief Facts:

The Reference principally referred to a disputed house which was located outside Ruhero I and II in Nyakabingi area. The said house initially belonged to one Sebastian Ntirandekura who was killed during the war crisis in 1972.  He was the husband of Kizininda Catherine, a cousin of the Applicant.  Kizininda Catherine sold the said house to the Applicant with the Land Registry recognizing that transfer of title.  Later, the Applicant also sold the disputed house to Ntukamazina Jean who on his death left it to Niyonzima Leocadie, his wife. The  Minister of  Justice  of  Burundi  had written letters confirming that  those houses were  still  private property and not  affected  by proceedings  of  the National Commission of  Lands and  Other Assets (the Commission) formed to  manage  and  take  care  of  land  and  properties  whose owners  had  been  killed  during  the  war  period  in  Burundi.

The  Applicant  claimed  that  the  Commission later nullified the  sale of the house between Kizininda Catherine  and himself as well as the sale from  the Applicant  to Ntukamazina  Jean declaring  both sales as null  and  void. It proceeded to  award  the  disputed  house to Ntaconayisige Sebastian, stating  that  he was the  child of  the late Ntirandekura Sebastian,  the deceased husband of  Kizininda Catharine who had sold the house to the Applicant. The Applicant thus prayed that the sale agreement between him and Catherine be declared legal and made in respect of the law of Burundi, that the Commission’s actions be nullified and the Respondent be ordered to pay costs of the Reference.

Issues:

  1. Whether the East African Court of Justice had jurisdiction to entertain the Reference.
  2. Whether the Reference was time-barred.
  3. Whether the Applicant was entitled to the remedies sought.

International Law- law of Treaty-interpretation of Treaty Establishing East African Community-Role of the Court- Jurisdiction of the Court-whether the East African Court of Justice had jurisdiction to entertain the Reference-Treaty Establishing East African Community, articles 23(1);27(1)

International Law- law of Treaty-interpretation of Treaty Establishing East African Community-Reference by legal and natural persons- whether the Reference was time-barred-Treaty Establishing East African Community, article 30(2)

Relevant Provisions of the Law

Treaty Establishing East African Community, 1999

Article 23(1) – Role of the Court

The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with this Treaty.

Article 27(1) – Jurisdiction of the Court

The Court shall initially have jurisdiction over the interpretation and application of this Treaty: Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States.

Article 30(2) – Reference by Legal and Natural Persons

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.

Held

  1. The EACJ had jurisdiction under articles 23(1) and 27((1) to interpret and apply the provisions of the Treaty as well as ensure compliance of the same in that context. In the  Reference, the Applicant  had alleged that there was an infringement of articles 6(d) and 7(2)  of the Treaty  and therefore given the  fact that the Court had jurisdiction  under  articles 23(1)  and  27(1) read together with article 30(1)  to  interpret  and  apply  the said  provisions  of  the Treaty,  then it similarly  had  jurisdiction  to  interpret and  apply articles  6(d)  and 7(2). In numerous past decisions, the Court had asserted itself that once there was an allegation of infringement of the provisions of the Treaty then it was seized with jurisdiction to interpret and apply the same.
  2. Under  articles 23(1),27(1) read together with  article  30(1)  the Court  had jurisdiction to  grant  a  declaration   order  that   the   judicial  power  given  to  the Commission by the Respondent and the  proceedings and decision made  by the First Instance Division of the Commission was an infringement of Articles 6{d} and 7{2) of the  Treaty and the Respondent pays costs depending on their  merit. That led to the contention of the Respondent that the Court had no jurisdiction to grant an order that an agreement made between Kizininda Catharine and the Applicant was legal and made in respect of the Law of Burundi in the Reference as per the provisions of articles 27(2) and 30(3) of the Treaty. The aforesaid prayer in the Reference  which requested the Court to make a declaratory order  was a matter within the jurisdiction of the National Courts in Burundi hence, the Court had no jurisdiction to entertain the same.
  3. At  a close glance  of the  facts, events  and  prayers  by  the  Applicant  in  the  Reference,  it clearly emerged  that  the  complaints were  based on  the  law  that  provided administrative powers to the Commission  which had been in operation since 2006  and revised in 2009,  2011and 2013. The Applicant’s complaints were also based on the decision of the said Commission (Provincial Level) dated 2nd May, 2013, which nullified the  sale of the  disputed house entered  into  on August 6,1975. Taking into  account  the  said dates, it was clear that  the filing of  the  Reference  on July 11, 2014,   as  was  done  by the Applicant  was well beyond  the  limit of two  months  period  provided for  under article 30(2) of the Treaty.
  4. The Applicant was fully aware or ought to have been aware of the law that established the aforesaid Commission in 2006,and the amendments to it in 2009, 2011and 2013.  He was also aware of the decision of the said Commission (Provincial Level) on May 2, 2013 that nullified the sale agreement of the disputed house. The  stand  of the Court  as far as the  issue of limitation  of time  provided for  under  article  30(2)  of the  Treaty was concerned  had widely  been expressed in cases which included The Attorney General of the  Republic of Uganda, and the  Attorney  General of the Republic of Kenya, vs. Omar Awadh, EACJ Appeal No.2 of 2003 and Prof. Nyamoya Francois  vs. the  Attorney General  of  Burundi and  the  Secretary General of the East African Community, EACJ Ref. No. 8 of 2011.
  5. It  had been stated  by the  Court in all those cases that  article  30(2)  of the Treaty  demanded  strict application of the time  limit stated  therein and there  was no room  for the  Court to extend the  time  limit  set under the said provision. In conclusion, based on the aforesaid matters, the Reference was time-barred as filing of  the  Reference  on  July 18, 2014, by the Applicant  was well beyond  the  limit of two  months  period  provided for  under Article 30(2) of the Treaty. There was no need to deal with the prayers within the Court’s jurisdiction having held that the Reference was time-barred.

Reference struck out. No order as to costs.

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