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Kenya Law / Blog / Case Summary: The proper forum for challenging a partner state’s committee’s decision is before national courts and not the East African Court of Justice

The proper forum for challenging a partner state’s committee’s decision is before national courts and not the East African Court of Justice

M/S Quick Telecommunications Services v Attorney General of the United Republic of Tanzania

Reference No.10 of 2016

East African Court of Justice

M K Mugenyi, PJ; F Ntezilyayo,DPJ; F A Jundu, A Ngiye & C Nyawello, JJ

July 3, 2019

Reported by Faith Wanjiku

Download the Decision

Civil Practice and Procedure- decisions – decisions of partner state’s committees -challenging of partner state’s committee decisions-proper forum for-national courts vis-à-vis the East African Court of Justice-whether a partner state’s committee’s decision ought to be challenged before national courts or before the East African Court of Justice.

Jurisdiction-jurisdiction of the East African Court of Justice- interpretation and application of the Treaty-reference by legal and natural persons–proper reference- infringement of Treaty provisions -whether the Court had jurisdiction to hear and determine the reference contending that the acts, conducts and omissions of the respondent and his agents were in violation of articles 6(d) and 7(2) of the Treaty or it would be assuming an appellate function by adjudicating on the matter- Treaty for the Establishment of the East African Community, articles 27 (1) and 30 (1) Brief Facts:

The applicant’s representative alleged that he lodged in the High Court of Tanzania at Arusha a suit which was heard and determined by Judge Fatuma H. Massengi (the judge) and judgment was delivered partly and unprofessionally by awarding the applicant a minimum award and costs against the plaint and its prayers. The applicant also alleged that the judge’s unprofessional decision frustrated its application for leave to appeal to the Court of Appeal by confiscating application documents to the effect that the application was time barred and the company sustained loss of business in relation to that case. The applicant also alleged that it had been subjected to violent intimidation and was offended by the judge.

The applicant further averred that faced with such a situation and other challenges in pursuing its case, the matter was eventually brought before the Judges Ethics Committee, but dismissed. The applicant contended that before the said Committee, it was subjected to a tensional and repellent atmosphere by the judges of the Ethics Committee and the judge of the High Court. The applicant’s representative contended that he wrote a complaint letter to the Chief Justice of the United Republic of Tanzania and the Judges Ethics Committee responded to the said letter by inviting the applicant to attend a hearing of its complaint in three separate days and then the said Committee delivered its ruling and dismissed the said complaint.

The applicant’s representative further averred that following the dismissal of the complaint by the Judges Ethics Committee, he lodged the reference contending that the acts, conducts and omissions of the respondent and his agents were in violation of the statutes and the Treaty for the Establishment of the East African Community (the Treaty) in that they violated articles 6(d) and 7(2) of the Treaty.
Issues:

i    Whether a partner state’s committee’s decision ought to be challenged before national courts or before the East African Court of Justice.

ii    Whether the     EACJ    had jurisdiction to hear and determine the reference contending that the acts, conducts and omissions of the respondent and his agents were in violation of articles 6(d) and 7(2) of the Treaty on fundamental and operational principles or it would be assuming an appellate function by adjudicating on the matter.

iii    Whether the applicant’s reference contending that the acts, conducts and omissions of the respondent and his agents were in violation of articles 6(d) and 7(2) of the Treaty on fundamental and operational principles was properly before the Court.
Held:

1.    Article 27(1) of the Treaty designated the jurisdiction of the Court as the interpretation and application of the Treaty; article 30(1) on its part provided the context within which such jurisdiction would be exercised. The Court had had opportunities to address the question of its jurisdiction in different decided cases. It had consistently found its jurisdiction to have been sufficiently established where it was averred on the face of the parties’ pleadings that the matter complained of constituted an infringement of the Treaty.

2.    The EACJ was called upon to determine the legality of the respondent’s acts on the grounds that the impugned acts were an infringement of provisions of the Treaty. That was well within its mandate under article 30(1) of the Treaty. The respondent’s contention was that by adjudicating the matter, the court would have assumed appellate function which had not been bestowed upon it by the Treaty or would be exercising a judicial review which was the preserve of Tanzanian Courts. However, considering the provisions of articles 27 (1) and 30(1) the court was not convinced by the respondent’s arguments and thereby held that the reference fell squarely within the court’s jurisdiction.

3.    The court was also urged not to determine the present reference contending that by doing so, it would be sitting as an appellate court of the decision rendered by the High Court of Tanzania.  With regard to that contention, what was in issue in the reference was the decision taken by the Judges Ethics Committee on the applicant’s complaints against alleged mishandling of its case by the judge. The contention that if the court determined the matter it would be sitting as an appellate court did not arise because the decision of the Judges Ethics Committee was not a decision of a court of law subject to appeal to a superior court.

4.    The legal course of action was for the applicant to file a case before the High Court of Tanzania if it was not satisfied by the decision of the Judges Ethics Committee. Having failed to do so, it could not claim that due process of the law was not followed and that articles 6(d) and 7(2) of the Treaty were violated by the respondent. The applicant had failed in all its claims against the respondent and would therefore bear costs of the reference.

Reference dismissed with costs to the respondent.

Orders:

i    The respondent did not violate the principles enshrined in articles 6(d) and 7(2), and the declarations sought in (a), (b) and (c) were not granted.

ii    The court declined to grant the prayer that it declares unprofessional and null the ruling of the Judges Ethics Committee as per its findings on issue no. 3

iii    Concerning prayer (e) related to the termination of office, prayer (g) on retirement benefits for Judge Fatuma H. Massengi, Judge M.S. Mbarouk, Judge B.M. Mmila, Judge A.G. Mwarija, Judge H.T. Songoro and Hon. K. Revocati, and prayer (j) on the leave to appeal judgment in Land Case No. 19 of 2012, the Court declined to grant the said prayers for they fell outside its statutory jurisdiction.

iv    As regards prayers (f), (h), (I), (m), (n) and (o) on damages, interest thereto and other payments claimed by the applicant against the respondent and his agents, those prayers were not granted because no violation of the Treaty was found against the respondent.

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