MANARIYO DESIRE v. THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI

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

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.
The Trial Court while dismissing the case found inter alia that: Appellant, the evidentiary threshold of proof was not met as: the property laws of Burundi were not availed to the Court and thus no inferences could be drawn as regards inconsistency of such laws with international human rights standards, unequal enforcements of the law, non-supremacy of the law, or inequality before the law; the record of proceedings were also not availed ; and there no sufficient evidence of the abuse of the Applicant’s rights to be heard furthermore, the Applicant did not discharge his duty to present evidence that was conclusive proof of the elements of the rule of law principle. Additionally, the Appellant did establish any nexus between the authentic notarised deeds and Attested Affidavits, and, accordingly, the legality of the Supreme Court’s decision on the issue of the authenticity and probative value of the Attested Affidavit could not be faulted; and the Appellant had relinquished all legal title to the disputed property to new buyers and had no proprietary rights.

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.
RespondentTHE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI
ComplainantMANARIYO DESIRE
Date filed
CountriesBurundi
KeywordAccess to justice , Attribution of State action , 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 ArticleAfrican Charter on Human and Peoples Rights , Article 14 , Article 15 , Article 27 , Article 3 , 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

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

Verdict
The word jurisdiction is used as a unitary concept to denote three essential elements namely: jurisdiction ratione materiae (subject matter), ratione personae (locus standi), and ratione temporis (temporal condition). The absence of any of the above essential elements of jurisdiction would disavow this Court the mandate to entertain a dispute.
  1. Correct interpretation of a Treaty is the one that deciphers the parties’ concordant will or intention. While the International Law Commission’s Draft Articles on the Law of Treaties clarify that the articles were designed to appreciate the meaning which the parties may have intended to attach to the expressions that they employed in a document. Interpretation under the Vienna Convention on the Law of Treaties aims at giving effect to the intention of the parties as expressed in the words used and in the light of the surrounding circumstances. The text must be presumed to be the authentic expression of intentions of parties. This Court can either subscribe to a broad or a narrow interpretation of a given term of a treaty in accordance with the boundaries established by the intention of the parties.
  2. It was not the intention of the parties to the EAC Treaty to give the term “resident in” a special meaning which differs from its ordinary meaning and usage. And neither can we give it a meaning which departs from the ordinary meaning since doing so would depart from the mandate of this Court which is to ascertain the intention of the parties to the treaty when engaging in interpretation.
  3. The word “resident in” in Article 30 (1) is used as an adjective, it means living or staying in a place.This would lead to the conclusion that the intention of the drafters of the EAC Treaty was to restrict locus standi to persons “living” or “staying” in a Partner State of EAC and not to all citizens including those who don’t “live” or “stay” within any Partner State of the EAC. In the light of its ordinary meaning, the word
    “resident” as used in the EAC Treaty cannot be construed to mean that it was intended by the drafters of the Treaty to engraft “non-resident citizens” of EAC Partner States as part of the phrase “...any person who is resident in a Partner State...”.
    1. Even though the EAC Treaty does not define the term “resident”, a review of Article 86 of the Treaty makes it clear beyond doubt that “resident in” as used in Article 30 does not include “all citizens” regardless of whether they are resident or not as is claimed by the Appellant. Where a “citizen” of any of the Partner State of the EAC is not a “resident in” any of the EAC States, then this Court is disavowed of the jurisdiction ratione personae to deal with the case.
    2. When interpreting a treaty, the assumption should be that the parties in expressing their intention, they do so in such a manner that no norm expressed logically contradicts another and that no part of the treaty should be rendered redundant. Therefore, even though the EAC Treaty does not define the term resident, a review of Article 86 of the Treaty makes it clear beyond doubt that “resident in” as used in Article 30 does not include “all citizens” regardless of whether they are resident or not as is claimed by the Appellant.
    3. The distinction of “persons residents in” and “citizens of” a Partner State in Article 86 (b) dispels any lingering doubt that the term “resident in” in Article 30 (1) was not meant to include “all citizens” including those who are not “resident in” an EAC Partner State. To include those who are not resident in a Partner State would result in reducing the distinction made in Article 86(b) to redundancy or inutility. The Court declined to render the distinction made in Art. 86 (b) otiose, thereby offending the principle that all parts of a treaty, if possible must be given effect.
      8. A people-centred approach to cooperation and integration does not necessarily counter the intention of parties to the EAC Treaty to intend to grant locus standi to a certain set of citizens before the EACJ and not others. It is not unusual for parties to treaties to establish courts and restrict locus standi in one way or another. Restriction of locus standi persons is not absurd and does not necessary go counter to the broad aspirations of treaties. Where parties to a treaty have restricted locus standi that restriction should be interpreted restrictively for that is what the partner states have intended however broad other sections of the treaty may be interpreted. Thus while some sections of a treaty may be interpreted broadly and purposively others may be interpreted restrictively depending on what parties of that particular treaty intended the sections to mean.
      9. From the statement in the Affidavit the Trial Court rightly concluded that: ‘the Applicant’s (Manariyo) affidavit of 18th November 2015 does indicate that he is ordinarily resident in the United States of America’. The moment the Trial Court concluded that the Appellant was a resident in a State other than the one envisaged in Art. 30 (1), it should have proceeded to engage the judicial handbrake and divest itself from entertaining the merits of the matter for want of jurisdiction ratione personae. The notion that the Appellant has “the intention to return” (“Animus revertendi”) has no place in the provisions of Art. 30 (1) for purposes of granting such a person locus standi before the EACJ. The Appellant was not a “resident in” any of the EAC States and this Court is disavowed of the jurisdiction ratione personae to deal with the case. Since the Court has no jurisdiction to entertain the Reference, it is precluded to rule on the merits of the Case.
PDF documentDownload the decision as PDF
Date deliveredNovember 28, 2018
Quorum