VENANT MASENGE v. THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI

Case Number APPLICATION NO. 5 OF 2013 (ARISING FROM REFERENCE NO. 9 OF 2012)
Summary
  1. The present Application, filed on 30th October 2013, arises from Reference No.9 of 2012 which was filed on 10th August 2012 under Articles 3(3)(b), 6(d), 7(2), 8(4), 27(1) and 30(1) & (2) of the Treaty for the Establishment of the East African Community (hereinafter referred to as “ the Treaty”) and where the Applicant seeks among other orders a declaration that the occupation and exploitation of his land property by the Respondent’s agents is unlawful and constitutes an infringement of Articles 6(d) and 7(2) of the Treaty.
  2. Before the hearing of the Reference, the Applicant, Venant MASENGE, filed a Notice of Motion under Rules 1(2) and 2(2) (3) & (4) of the EACJ Rules of Procedure seeking the following orders:

“a) A temporary injunction restraining and prohibiting the Respondent from using the property which is in conflict or changing it in any way;

b)   An order of an injunction nature to stop immediately all the constructions undergoing on the land.

c)   The Court to make such further or other orders as may be necessary in the circumstances of the case;

d)  The costs of this Application be provided for.”
RespondentThe Attorney General Of The Republic Of Burundi
ComplainantVenant Masenge
Date filedOctober 30, 2013
CountriesBurundi
Keyword
Treaty ArticleArticle 27 , Article 30 , Article 6 , Article 7 , Article 8 , Rule 1

First Instance Judgment

Verdict
  1. We have reviewed the material submitted by both parties, and especially the 2011 Burundi Land Act, the Constitution of Burundi and the Registration Certificate of a land property Vol. ECCXXV Portfolio 134 issued on 9th August 2009 by the Registrar of Land Titles. The latter was registered in the name of Mr. Venant Masenge, the Applicant. Therefore, at a prima facie level, the title may serve as an indication that theApplicant may have an interest in the property. In making this finding, we have also taken note of the fact that the Respondent has taken no action to revoke the Applicant’s title and to-date no legal proceedings have been undertaken to show that he unlawfully acquired the said title and/or that he unlawfully occupied the land.
  2. In light of the foregoing, subject to more substantial arguments at the hearing of the Reference, it is our considered view that the Applicant’s claim on the disputed land raises serious triable issues that warrant interrogation within the meaning of Article 30 of the Treaty as read together with Articles 6(d) and 7(2) thereof.
  3. As for the Applicant’s prayer that the interlocutory injunction order also ought to be granted on the ground that the delay caused by proceedings in the ordinary way would or might entail irreparable injustice for him, the latter has notshown in his submissions or affidavit that if the injunction is not granted he will suffer irreparable injury that cannot be compensated by award of damages. Considering the case at issue, we are of the view that any potential injury that the Applicant may suffer if the injunction is not granted is quantifiable and damages would be an appropriate compensation. Consequently, the Court is also of the opinion that although his reference raises triable issues, the balance of convenience does not lie in favour of the Applicant and for obvious reasons.
  4. Lastly, given the foregoing, and bearing in mind that the grant of an interlocutory injunction is an exercise of the Court’s discretion which must be exercised judiciously at all times (See Kahoho vs. Secretary General, EACJ Application No.5 of 2012), we decline to grant the interlocutory injunction orders sought and do hereby dismiss this Application.
  5. The cost thereof shall abide the outcome of the Reference.
It is so ordered  
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Date deliveredJune 18, 2014
Quorum

Appeal Judgment

Verdict
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Date delivered
Quorum