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.