ALICE NIJIMBERE v. THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY

Case Number APPEAL NO. 1 OF 2016
Summary

In 2015, the Appellant applied for and was short-listed for the post of Registrar of the East African Court of Justice. Candidates were to be interviewed through video conferencing at the offices of the Ministry of East African Community Affairs in Partner Sates and in the Appellant’s case, in Bujumbura. Shortly prior to the interview, the Appellant sought a special dispensation from the Respondent allowing her to be interviewed at Arusha as her child was indisposed. The Respondent declined her request, interviews proceeded and the Respondent recruited a Registrar. The Appellant filed a Reference claiming that the Respondent’s action infringed the principle of equal opportunity in the Treaty and the EAC Staff Rules and Regulations. The Respondent submitted inter alia that all candidates were accorded a level playing field without exception and that the rules for the interview could not be changed to relocate the Appellant’s interview to Arusha. The Trial Court dismissed the Reference.

The Appellant appealed claiming inter alia that the Trial Court: erred in law by not considering all the evidence and submissions adduced and did not base its decision on the allegations of the parties, was hazy, faltering and legally wanting in sufficiency; the Court did not refer to affidavits, written submissions and rejoinder: it erred by not finding that the Respondent breached the Treaty and the Staff Rules in rejecting her request for a special

dispensation to be interviewed in Arusha and not considering her claim for damages. She sought a reversal of the impugned judgment.
On their part, the Respondent averred that: the Appellant’s request to be interviewed in Arusha was a request for a favour which cannot constitute a legal right; and going by the Staff Rules, the interview process was transparent and none of the other shortlisted candidates raised any complaint; and the Trial Court’s judgment met all the requirements of the Court’s rules of procedure, it was well-reasoned and took into account all the points for determination raised by the parties.
RespondentThe Secretary General of the East African Community
ComplainantAlice Nijimbere
Date filed
CountriesEast African Community
KeywordContent of judgments , Error of law , Jurisdiction
Treaty ArticleArticle 35 A , Article 6 , Article 71 , Articles of EAC Treaty , Rule 53 , Rule 65 , Rule 68 , Rules of Procedure 2013

First Instance Judgment

VerdictPrayer (i) seeks annulment of the decision refusing to grant the Applicant "dispensation to be interviewed at the Headquarters of the EAC for the position of Registrar due to a genuine reason." We have held that although the Applicant's child was sick hence her inability to attend the interview, she could have managed her situation, reasonably, to enable her do so hence our finding above that the decision of the Respondent cannot amount to a violation of the Treaty in Article, 6(d), (e) and (f) as claimed and therefore, that prayer must and is hereby dismissed. Prayer (ii) seeks an interim order that the process of recruitment of the Registrar for this Court should be suspended until the pleadings are closed. It is obvious that at this stage, this Court cannot grant interim reliefs and whatever the merits or otherwise of that Prayer, it is denied and is therefore, dismissed. Prayer (iii) is to the effect that the aforesaid decision should be declared null and void but once we have found no violation of the Treaty, the same cannot be granted and is instead dismissed. Prayer (iv) seeks a re-launch of the interview process but it is obvious that we see no need to grant such a prayer and the same is similarly dismissed.
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Date deliveredMarch 23, 2016
Quorum

Appeal Judgment

Verdict
  1. Both the Common Law and Civil Law systems of justice require judgments not to reproduce the pleadings and evidence but to give a concise statement of the facts, as can be objectively gleaned from the pleadings and evidence of both sides. There should be a clear indication in the judgment, of the issues the Court is being called upon to resolve, Rule 68(5) (f), as agreed upon at the Scheduling Conference held under Rule 53 (1) of the Court’s Rules.
  2. The points for determination were clearly spelt out in paragraph 25 of the Trial Court’s Judgment, and as shown in para. 26 of that Judgment, the Trial Court dealt with each issue separately after summarising the submissions made by the Parties. The Trial Court critically evaluated all the material before it, and rendered its interpretation of the relevant provisions of the Treaty and Staff Rules and made its reasoned determinations thereon. The impugned Judgment was articulately and succinctly composed in plain language. The decision on every issue for determination was lucidly explained and justified by reasons.
  3. The failure on the part of the judge (s) to comply with the mandatory requirements of law, be it wittingly or otherwise, amounts to an error of law. Findings of fact are precluded from questioning on appeal under Article 35A of the Treaty. However, the Court is not barred from observing that all the facts which formed the core of the Trial Court’s decision are readily discernible from the Pleadings and affidavit evidence. It has not been proved that the Trial Court’s decision was predicated on a misapprehension of the Pleadings and/or evidence on record. Therefore, we agree with the Trial Court that the Respondent did not breach Regulation 20(7) of the Staff Rules and the Appellant was not at all discriminated against having voluntarily opted out of the interview exercise.
  4. The Trial Court was satisfied that the Respondent acted with all necessary promptitude on the Appellant’s request. This was a finding of fact based, in our considered opinion, on a proper appreciation of the evidence. The Appellant also failed to demonstrate that the Respondent abdicated his Treaty responsibilities under Article 71(h) of the Treaty. This Court has no legal mandate, to interfere with the Trial Court’s findings of facts regardless of the Appellant’s displeasure.
  5. Judicial decisions entail a proper evaluation of evidence, an objective scrutiny of the entire evidence proffered by the parties, be it oral, documentary, real or demonstrative, with a view to reaching balanced conclusions of facts or reasonable inferences of fact and application of the governing law(s). From the record, the reasoning which justifies the conclusion indicates that the Trial Court’s decision was not based on a misapprehension, real or apparent, of the evidence. It was a result of a balanced analysis of all the material before it. There is nothing perverse in that Judgment to justify our reversing it or even varying it. It is as balanced and clear as it is reasoned. It can only be upheld in its entirety, as we hereby do.
  6. The claim for damages was raised for the first time by the Appellant in her final submissions, and no amendment was effected to the pleadings. It is trite law that parties are bound by their pleadings and that a Court has no jurisdiction to grant a relief not specifically pleaded. The Trial Court rightly held that the claim was unprocedurally introduced and where a matter is not pleaded and the other Party has no opportunity to respond to it so the ends of Justice would not be met if a court were to determine it.
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Date deliveredDecember 2, 2016
Quorum