Case Number APPEAL NO. 1 OF 2017 (DISSENTING JUDGMENT)
Summary

We have the misfortune to differ with the judgment which the majority of the Court have delivered holding that the First Instance Division of this Court (“the Trial Court”) lacked Jurisdiction ratione personae to entertain the Reference subject matter of this Appeal on the ground that the Appellant was not resident in a Partner State of the Community at the time of filing the Reference because he was
then not physically residing in Burundi.
For reasons which we shall set out in full when determining the aspect of the Appeal dealing with the Court’s jurisdiction, we think that the majority in finding that the Appellant was not physically resident in a Partner State have not only adopted a literal and narrow interpretation of Article 30 (1) of the Treaty for the Establishment of the East African Community (“the Treaty”) which does not commend itself to our
minds, but have also misapprehended the pleadings and the facts as deposed in the Appellant’s affidavit in support of the Reference. With the greatest of respect, we shall show that the method of interpretation adopted by the majority, which takes a narrow and restrictive interpretation of the Treaty was rejected in the very early days of this Court and therefore amounts to a retrogressive and backward move in Treaty interpretation for this Court.
Having taken that view of the matter, our Judgment will accordingly deal with both the jurisdictional issue and the substantive merits of the Appeal.

RespondentTHE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI
ComplainantMANARIYO DESIRE
Date filed
CountriesBurundi
Keyword
Treaty Article

First Instance Judgment

VerdictHaving held as we have with regard to non-proof of the Applicant's purported property rights; we decline to grant Orders for the restoration of unproven rights or a progress report in respect thereof. With regard to the question of costs, we are mindful of Rule 111(1) of this Court's Rules that postulates that costs should follow the event unless the Court, for good reason, decides otherwise. In the instant case the Reference has not succeeded so ordinarily the costs thereof would be to the Respondent. However, we find that the matters that were canvassed herein were of grave importance to the advancement of Community Law. We therefore deem it just to order each party to bear its own costs. In the result, the Reference is hereby dismissed. Each Party shall bear its own costs. We so order.
PDF documentDownload the decision as PDF
Date deliveredDecember 2, 2016
Quorum

Appeal Judgment

VerdictThe Appellant prayed for costs here and in the Trial Court and the Respondent prayed that we dismiss the Appeal with Costs. In its impugned Judgment, The Trial Court declined to make any Order for costs against the Appellant despite his Reference having failed on the ground that the matters canvassed therein were of grave importance to the advancement of community law. The Trial Court deemed it just to order each party to bear its own costs. We are of the same mind with the Trial Court. We will accordingly order that each party bears its costs here and below. The upshot of our consideration of this Appeal is that the same is dismissed with no Order as to Costs. It is so ordered.
PDF documentDownload the decision as PDF
Date deliveredNovember 28, 2018
Quorum