Application filed: 17th March 2017.
Articles: 6(d) & 7(2) of the Treaty for the Establishment of the East African Community (EAC) and Articles 15(1) of the EAC Common Market Protocol, 2010.
Rules: 1(2) & 24 of the East African Court of Justice Rules of Procedure, 2013.
Subject matter: Alleged violation of property rights.
The Reference is premised on the Respondent violation of the principles of the Rule of law and Human Rights enshrined under Articles 6 (d) & 7(2) of the EAC Treaty, Article 15(1) of the EAC Common Market Protocol and Article 14 of the African Charter on Human and Peoples Rights. The said violations are alleged to be in respect of a decision made by a Tribunal of Grande Instance of Bujumbura dated 27th December 2016 which annulled all the Applicants’ certificates of title despite authoritative evidence tendered before it and failure to give sufficient reasons in its judgment or following the special procedure prescribed under Burundian laws.
The three Applicants, Niyongabo Theodore (1st Applicant), Niyungeko Gerald (2nd Applicant) & Manariyo Desire (3rd Applicant) are citizens of the Republic of Burundi who have sued the Attorney General of the Republic of Burundi, (the Respondent) as the legal representative of the Government.
The background of the complaint is that, sometime back in 1997, the 3rd Applicant (Manariyo Desire) bought three adjacent pieces of land from Mr. Nzopfabarushe Simon, Mr. Habonimana Andre and Mr. Nzopfabarushe Simon. In 1999 the Applicant and the three sellers, had their sale transactions authenticated before the Tribunal of Residence of Musaga, in Bujumbura and they procured from that Tribunal an authenticated contract, through an attested Affidavit. The 3rd Applicant consolidated the said pieces of land and obtain a Certificate of Title in his name.
Subsequently the 3rd Applicant sub-divided the consolidated land and sold plots to new buyers including Mr Niyongabo Theodore (1st Applicant) and Niyungeko Gerald (2nd Applicant), who bought two plots each, of the sub-divided plots and obtained new certificates of title. Both the 1st Applicant & the 2nd Applicant took possession of their respective plots, engaged in farming and both subsequently sub-divided their plots and sold parts thereof to other bona fide purchases, who built residence houses.
In 2010, Mr. Ndayishimiye Jean and Mr Mpitabavuna Nicolas separately filed cases against the 1st Applicant before the Tribunal of Grande Instance of Bujumbura claiming parts of the land that was owned by the 1st Applicant. The two separate cases were later consolidated by the Tribunal. The 2nd Applicant voluntarily requested to be joined in the case and the 3rd Applicant was ordered to join the case.
During the Court proceedings, the 3rd Applicant tendered evidence before the Tribunal to prove that, he legally bought the properties in question before disposing some to the 1st and 2nd Applicants. Meanwhile the 1st and 2nd Applicants tendered as part of their evidence, their respective certificates of title.
It is the Applicants’ submission that, under Burundian law, certificates of title issued by the Registrar of lands are authenticated acts that cannot be annulled, except where there is a special action on forgery which was never undertaken in respect of any of the three Applicants certificates of title. That, on 27th December 2016, the Tribunal annulled all the Applicants’ certificates of title despite the evidence tendered and without giving any sufficient reasons in its judgment. Further alleges that, the Tribunal did not follow the special procedure as prescribed by the law for annulling certificates of title.
The Applicants allege to have made diligent efforts to enable the Respondent protect their property rights within the Republic of Burundi but the Respondent failed to discharge its obligation.
The Applicants submits that, this Reference is not an appeal from the decision of the Tribunal but a matter against the Respondent failure to fulfil its obligations to the Applicants in accordance to the Republic of Burundi (Respondent) commitments under Articles 6(d) and 7(2) of the EAC Treaty, Article 15(1) of the EAC Common Market Protocol and Article 14 of the African Charter on Human and Peoples’ Rights.
The Applicants therefore pray for among other orders;
- a declaration that the Respondent action or omission are unlawful and an infringement to the EAC Treaty, the Common Market Protocol and the African Charter;
- a declaration that the Respondent has violated the property rights of the Applicants and their heirs or assigns and in violation of the commitment it has made under the EAC Treaty, Common Market Protocol and the African Charter; and
- orders for reparation.
The Respondent contends that the East African Court of Justice (EACJ) lacks appellate jurisdiction over matters arising from Partner States. Further, issue relating to title deeds by the 3rd Applicant were determined by EACJ and if the Applicants are not appealing against the decision of the Tribunal, the action or omission related to the title deeds are time-barred. The Respondent further denies any allegations by the Applicants’ related to violations of the EAC Treaty, the Common Market Protocol and the African Charter.
This is a document produced by the Registry to assist in understanding forthcoming matters before the Court. It does not bind the Court. For authoritative Decisions, Judgments and general information about the Court please visit http://www.eacj.org
Contact: Registrar, East African Court of Justice, P.O. Box 1096 Arusha, Tanzania Tel: +255 27 2506093 Fax: +255 27 27 2509493 Email: eacj@eachq.org