| Verdict | We have carefully considered the rival arguments of both Parties on Issue No.1 above and we determine it as hereunder:
First, the issue of jurisdiction in this Reference, as argued by the Applicant and not disputed by the Respondent, in our own considered view, starts with an appreciation of Article 30(1) of the Treaty. It is the one that has mandated the Applicant as a natural person and resident of Bujumbura in Burundi, a Partner State of the East African Community, to access to this Court. The said provision of the Treaty provides as follows:-
“Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of the Treaty.”
Secondly, the Applicant has asserted and the Responded has conceded, that, this Court under Articles 23(1) and 27(1) of the Treaty is vested with jurisdiction on interpretation and application of the provisions of the Treaty as well as compliance with the same. We subscribe to the said view and since the Applicant asserts that there “is an infringement of Articles 6(d) and 7(2) of the Treaty … “ we hold that this Court has jurisdiction under Articles 23(1) and 27(1) read together with Article 30(1) to interprete and apply the said provisions. This Court in various past decisions has already asserted itself as regards its jurisdiction, mandate and interpretation of the provisions of the Treaty (See: Hon. Sitenda Sebalu vs. Secretary General of the EAC & 3 Others EACJ Ref. No.1 of 2010; and Samuel Mukira Mohochi vs. AG of Uganda, EACJ Ref. No.5 of 2011)
Thirdly, the Respondent, however, contends that the jurisdiction of this Court under the aforesaid provisions of the Treaty in this Reference is only applicable to prayers (a) and (e) but not prayers (b), (c) and (d) thereof. The argument of the Respondent in that regard is that prayers (b), (c) and (d) in the Reference fall outside this Court’s jurisdiction as provided for under Articles 23 and 27 read together with Article 30 of the Treaty. He has cited the decisions of this Court in Prof. Nyamoya Francois (supra) and Hilaire Ndayizamba (supra) in support of his assertion. As regards prayers (a) and (e), the Respondent maintains that although the Court has jurisdiction over them he prayed that the same be dismissed as being time-barred. The Applicant did not respond to the aforesaid contentions of the Respondent.
In our considered view, we need to glance at and reproduce the prayers in the Reference to consider the Respondent’s argument as advanced above. The prayers read as follows:-
a) A declaration that the occupation by force by the Respondent of the house and outbuildings of Georges Ruhara as mentioned above is an infringement of Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community;
b) A declaration that the Applicant has a full right to enjoy immediately the property of his house and outbuildings;
c) An order that the Respondent returns to the Applicant his house and outbuildings,
d) An order that Georges Ruhara be immediately paid the total amount of BIF 930,581,069.00 by the Respondent, without prejudice to all ulterior rental owed from March, 2014 up to full settlement; and
e) Direct that the Respondent shall pay all costs of this Reference.
In addressing the Respondent’s contentions in the context of the above prayers, it is not the first time that this Court is faced with a contention from a respondent that the Court has jurisdiction in some of the prayers listed in a reference and that it does not have jurisdiction in others listed therein. In Hilaire Ndayizamba (supra), for example, this Court considered such a contention and held thus:-
“…. We are of the decided opinion and in agreement with the Respondents, that this Court has jurisdiction to entertain prayers (c) (b) and (e) of the Reference and that it is not clothed with the jurisdiction to grant prayers (c) and (d) since the latter clearly falls outside the Court’s jurisdiction as provided for by Articles 23, 27 as read together with Article 30 of the Treaty.”
In Prof. Nyamoya Francois (supra), this Court considered a similar contention and held as follows:-
“Without belabouring the point we hold that this Court has jurisdiction to entertain the Reference in so far as prayers (a), (b) and (e) of the Reference are concerned. As regards to prayers (c) and (d), we have no jurisdiction to make such orders and we decline the invitation to perform the duties properly conferred on the National Courts of Burundi.”
In the present Reference, we have carefully considered the contention of the Respondent and carefully examined the provisions of Articles 23(1), 27(1) read together with Article 30(1) of the Treaty and we are in full agreement with the submission of the Respondent that this Court has jurisdiction to entertain and determine prayers (a) and (e) in the Reference but does not have jurisdiction to entertain prayers (b), (c) and (d) above because the same fall outside Articles 23, 27 and 30 of the Treaty. We so hold.
Fourthly, as regards the further contention of the Respondent that the Court should dismiss prayers (a) and (e) as being time-barred, we shall consider the same when considering Issue No.2 below.
We have carefully considered the rival submissions or arguments of both Parties. We have given due consideration to the Applicant’s contention that his delay to file this Reference was on the ground that he was barred, prevented and prohibited from visiting and getting inside the house and its outbuildings by the military troops which had occupied the same since July, 2003. Alternatively, we have also considered the Applicant’s arguments on the alleged silence of the Minister for Defence following the Applicant’s letter dated 23rd October, 2013, which allegedly in terms of Article 373 of the Civil Procedure Act No.1/010 of 13/5/2004 of Burundi is taken as a refusal or setting aside of the action taken.
In our considered view, the Applicant’s arguments are devoid of merits in face of the Respondent’s arguments which we agree with, We say so because in terms of Article 30(2) of the Treaty, the Reference is time-barred having been filed beyond the period of two months provided therein. As argued and demonstrated by Mr Kayobera, Learned Counsel for the Respondent, it is clear from the statement of the Reference and the Affidavit of the Applicant that the occupation of the house and outbuildings by the military troops commenced in July, 2003 and the Reference was filed on 24th March, 2014, a period of 11 years after the said occupation.
In our considered view, a period of 11 years as argued by the Respondent is beyond and way above the two months period provided for under Article 30(2) of the Treaty to institute a reference before this Court from the time the matter complained of commenced, that is the occupation of the Applicant’s house and its outbuildings. On the said premise, the Applicant’s contention that he was prohibited, prevented and barred by the military troops to visit and inspect the said house and that he could not therefore have filed a complaint before this Court, has no merit as it does not circumvent the issue of time limit under Article 30(2) of the Treaty. It is also his argument that the issue in contention is the failure or refusal of the Minister of Defence to return the house to the Applicant as per Article 373 of the Civil Procedure Act 01/010 of 13/5/2004 of Burundi. That argument cannot be sustained because the law that governs the issue of time limit in this matter is the Treaty and not the Civil Procedure Act No. 1/010 of 13/5/2004 of Burundi, hence it is still Article 30(2) of the Treaty which is applicable to a determination of the issue of time limit under the Treaty.
In conclusion, on Issue no.2, we uphold the Respondent’s contention that the Reference is time-barred because it did not comply with the strict provisions of Article 30(2) of the Treaty. This finding takes care of the Respondent’s prayer to this Court to dismiss the Applicant’s prayers (a) and (e) in the Reference. Having said so, and as held by this Court in Prof. Nyamoya Francois (supra) , we refrain from entertaining the remaining issues for one obvious and simple reason that the Reference is no longer alive and any attempt at determining those remaining issues will be a mere academic exercise.
DISPOSITION
Having found that the Reference is time-barred and having declined the invitation to address its merits or otherwise, it follows that the final orders to be made are that the Reference herein is hereby struck out.
We now come to the issue of costs. Costs are usually at the discretion of the Court. We have taken note of the circumstances in which the Applicant has been subjected to in respect of his house and its outbuildings such that it may not be fair and just to subject him to costs in this Reference. In exercise of our discretion, we order and direct that each Party should bear his or its own costs.
It is so ordered. |
