|Case Number||APPEAL NO. 1 OF 2017 (DISSENTING JUDGMENT)|
The Appellant, a citizen of Burundi purchased three parcels of land in Bujumbura one of which was sold to him by one Simon Nzopfabarushe. The parcels were consolidated and surveyed by the Land Registry, Regional Office Bujumbura. Two years later, all 3 sellers of the land and the Appellant appeared before the Tribunal de residence of Musaga, in Bujumbura, to procure from that Tribunal an authenticated single agreement based on the Private Sale Agreements. They executed a single attested affidavit (Acte de notoriete) number 356/91 of 27th July 1999 and the Appellant obtained a Certificate of Title for the consolidated plot of land. Subsequently, the Appellant subdivided and sold the parcels to new buyers. The Certificate of Title Appellant was surrendered to the Registrar of Lands for annulment and, as required by Burundian law, and new Certificates of Title were issued to the new buyers.
In 2010, Simon Nzopfabarushe filed case RCC 25153 against the Appellant for the parcel of land he had sold and the Tribunal of First Instance (Tribunal de grande Instance) of Bujumbura issued a judgment in favour of the said Simon Nzopfabarushe without affording the Appellant a hearing or considering his written submissions which were on record. Thereafter, on 29th October 2013, the Court of Appeal confirmed the judgment of the Tribunal of First Instance so the Appellant filed a petition before the cassation chamber of the Supreme Court, raising the Court of Appeal’s refusal to recognise the legal and probative value of the Attested Affidavit Number 356/99 of 27th July 1999. The Cassation Chamber of the Supreme Court rejected all the legal grounds invoked in the Applicant’s petition and upheld the judgment of the Court of Appeal 24th June 2015 and the Appellant’s Counsel was notified on 21st September 2015.
The Appellant brought a Reference to the Trial Court averring that the failure of the Respondent State’s organs to recognise the legal and probative value of the Attested Affidavit Number 356/99 of 27th July 1999 executed by the Respondent State’s own organs and was a failure of the Respondent to abide by its commitment under the Treaty to the principles of the rule of law, good governance and the recognition and protection of his right to property and to the peaceful enjoyment of property. He sought inter alia: a Declaration that the Respondent’s actions and omissions are unlawful and an infringement of Article 6 (d) and 7(2) of the Treaty; Article 14 of the EAC Common Market Protocol; and Article 14 of the African Charter; and an Order directing the Respondent to restore the property rights of the Applicant. He annexed the Attested Affidavit, its English translation, a copy of the Notification of the Judgment the Supreme Court with its English translation, and a copy of the Judgment with its English translation.
The Respondent claimed that the Trial Court had no jurisdiction to entertain the Reference and it was time barred.
On appeal, the Appellant averred that the Trial Court erred inter alia by: holding that the Appellant did not provide sufficient proof of Treaty violation; misapprehending that in the Burundian legal system, any Attested
Affidavit constituted genuine evidence of an agreement between parties and the content could only be challenged by taking a special action for forgery; failing to recognise the legal and probative value of the Attested Affidavit Number 356/99 of 27th July 1999; belatedly requiring the Applicant to produce the record of proceedings of the Supreme Court of Burundi and laws of Burundi that the Applicant was not invoking; inappropriately applying exceptional gravity as a standard of proof of claim in a Reference that simply involved failure to recognise individual property rights; belatedly, and suo motu, in its Judgment, questioning the locus standi of the Applicant, an issue which the Respondent had never raised; omitting to exercise its inherent power, even in an adversarial system, to seek from the parties any information the lack of which it was going to base its judgment, especially in a case in which the facts were uncontested; and failing to provide a remedy to violations of the Applicant’s rights after the Court had found that the impugned judgment of the Supreme Court depicted, inter alia, “a cavalier approach to an extremely serious judicial function. The Appellant also relied on the principle of Animus Revertendi; “The intention of returning averring that a man retains his domicile, if he leaves it animo revertendi”. Even if one is out of the country but has intention to return, his/her absence should not be used to curtail his/her right to a means of redress by any national or international court or tribunal.
The Respondent argued that: the Appellants Affidavit indicated that he was a resident of 40 Alder Street, Apt Box 9, Portland, Maine 04101, in the United States of America, and not a resident of any of the EAC Partner State as required by Article 30(1) of the Treaty. Thus, the lacked jurisdiction ratione personae to entertain the Reference.
The Appellant also submitted that the issue of residence was brought up for the first time by the Respondent in his submissions in reply at the appellate hearing. He argued that this issue had not been pleaded, or raised as an objection or even argued at the Trial Court. The Respondent therefore should not be allowed to belatedly change his position and rely on new points that had not been pleaded or traversed in the Trial Court. Furthermore, it could not have been the intention of the framers of the Treaty to exclude some citizens residing outside the Community the right to access the Court, while at the same time allowing the same right to foreigners. If this had been the intention, citizens this would have been expressly prescribed the Treaty.
The Appellate Division introduced the issue of jurisdiction on its own motion proprio motu due to a statement on the Judgment of the Trial Court that the Appellant’s affidavit of 18th November 2015 indicated that he was ordinarily resident in the United States.
|Respondent||THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI|
|Keyword||Access to justice , Intention of State parties , Jurisdiction , Legal and Natural Persons , Literal interpretation , Locus standi , Principle of animus revertendi , Public Interest litigation , Resident in a Partner State|
|Treaty Article||African Charter on Human and Peoples Rights , Article 14 , Article 15 , Article 2 , Article 27 , Article 30 , Article 32 , Article 33 , Article 6 , Article 7 , Article 86 , Articles of EAC Treaty , Draft Articles on State Responsibility 2001 ILC , EAC Common Market Protocol , Rule 43 , Rules of Procedure 2013 , Vienna Convention on the Law of Treaties (Article 31)|
First Instance Judgment
|Verdict||Having 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 document||Download the decision as PDF|
|Date delivered||December 2, 2016|
|PDF document||Download the decision as PDF|
|Date delivered||November 28, 2018|