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Attorney General of Burundi v Secretary General East African Community (Appeal 2 of 2019)

East African Court of Justice · [2020] EACJ 6 · 2020 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the First Instance Division of the East African Court of Justice dismissing a Reference challenging the election of the Speaker of the 4th East African Legislative Assembly
Decision
Appeal dismissed; Cross-Appeal allowed; Reference dismissed with costs to Respondent and Intervener

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Appellate Division dismissed the appeal and allowed the cross-appeal. The Court held that the Trial Court did not err in striking out affidavits sworn by counsel with personal conduct of the matter, as such affidavits are inadmissible and improper. The Court further held that the Trial Court was not obliged to invoke its inherent powers under Rule 1(2) to order production of evidence in an adversarial system where the burden of proof rests on the parties. The Court found no procedural irregularity or error of law in the Trial Court's finding that the election of the Speaker was not proved to contravene the Treaty or Assembly Rules. However, the Court held that the Trial Court erred in declining to award costs to the successful parties, as the denial was based on irrational grounds. The appeal was dismissed with costs to the Respondent and Intervener.

Outcome

Appeal dismissed; Cross-Appeal allowed; Reference dismissed with costs to Respondent and Intervener

Facts

The Attorney General of Burundi challenged the election of the Speaker of the 4th East African Legislative Assembly held on 18th December 2017, alleging that elected members from Burundi and Tanzania did not participate in the voting, thereby violating the quorum requirement under Rule 12(1) of the Assembly's Rules of Procedure and Articles 53(1) and 57(1) of the Treaty. The Reference was supported by affidavits sworn by Mr. Nestor Kayobera, the Director of Judicial Organization in the Ministry of Justice of Burundi, who also served as Counsel with personal conduct of the Reference. The Respondent opposed the Reference, contending that members from Burundi and Tanzania were present in the precincts of the Assembly and exercised their right to abstain from voting. The Trial Court struck out Kayobera's affidavits as hearsay and improper, finding that the Applicant had not proved the absence of quorum. The Trial Court dismissed the Reference with no order as to costs. The Attorney General appealed, and the Respondent and Intervener cross-appealed on the issue of costs.

Issues

  1. Whether the Trial Court erred in law or committed a procedural irregularity by striking out the affidavits sworn by Counsel for the Applicant in the Reference.
  2. Whether the Trial Court erred in law or committed a procedural irregularity by not invoking Rule 1(2) of the Court's Rules to order production of evidence from the Respondent and the Intervener on the fact of quorum during the election of the Speaker of the 4th Assembly.
  3. Whether the Trial Court erred in law or committed a procedural irregularity in not finding that the Speaker of the 4th East African Legislative Assembly was elected in contravention of Articles 53(1) or 57(1) of the Treaty or Rule 12(1) of the Assembly's Rules of Procedure.
  4. Whether the Trial Court erred in law by declining to award the costs of the Reference to the Respondent and to the Intervener.
  5. What remedies are the Parties and the Intervener entitled to.

Orders

  • The Appeal is dismissed.
  • The Cross-Appeal is allowed.
  • The Order of the Trial Court dated 2nd July 2019 dismissing the Reference with no order as to costs and directing each party to bear its own costs is set aside.
  • The Reference is dismissed with costs to the Respondent and the Intervener.
  • The Appellant shall bear the costs of the Appeal and the Cross-Appeal.

Rules and key headnotes

Evidence — Affidavits — Admissibility — Affidavit sworn by Counsel with personal conduct of matter
It is impermissible and improper for an advocate with personal conduct of a matter to swear an affidavit as to contested factual matters in such a case. By swearing an affidavit in a matter he or she is conducting, the advocate drops the mantle of independence, steps down from the exalted position at the Bar, and becomes a witness subject to all the vagaries of witnesses, including being found to be untruthful. Such conduct is unseemly and indecorous, and the courts do not brook it. Any such deposition will be struck out.
Evidence — Hearsay — Affidavits — Inadmissibility in proof of facts in issue
Hearsay statements of fact in an affidavit are inadmissible in proof of facts in issue or facts relevant to the issue in the substantive suit, and such depositions are for striking out.
Civil Procedure — Striking out evidence — Rule 47 of Court Rules — Scope of application
Rule 47 of the East African Court of Justice Rules of Procedure applies to the striking out of pleadings and analogous documents but not evidence. Affidavits are evidence and are not amenable to amendment. The words 'other document' in Rule 47 should be construed ejusdem generis to mean documents of the same nature as pleadings but excluding evidence. The striking out or expurgation of irrelevant or inadmissible evidence is founded on the Court's inherent power as master of its own processes to ensure the ends of justice and prevent abuse.
Civil Procedure — Inherent powers of Court — Rule 1(2) — Adversarial system — Burden of proof
The East African Court of Justice does not have an inquisitorial jurisdiction but presides over an adversarial system of litigation. Under the adversarial system, it is for the parties to produce such evidence as would support their respective cases. The Court has no power under the Treaty or the Rules to order production of evidence, and most emphatically not such evidence as would support a party's case when such party has fallen short of adducing admissible evidence. It cannot be a procedural irregularity not to exercise a discretionary power under Rule 1(2).
Civil Procedure — Pleadings — Admissions — Rule 43 — Facts deemed admitted unless denied
Under Rule 43 of the Court's Rules, any allegation of fact made by a party in a pleading is deemed to be admitted by the opposite party unless it is denied by the opposing party in the pleading. A denial may be made either by specific denial or by a statement of non-admission, and either expressly or by necessary implication. Facts which are admitted either expressly or by implication of the law of pleadings need not be proved. Where an alleged fact is directly contradicted in the Response, it is not an uncontested fact and must be proved by evidence.
Civil Procedure — Costs — Discretion of Court — Costs follow the event — Exceptional circumstances
Costs are in the discretion of the Court. In exercising such discretion, the Court bears in mind that costs follow the event and that a successful party may only exceptionally be deprived of costs depending on the particular circumstances of the case such as the conduct of the parties themselves or their legal representations, the nature of the litigants, the nature of the proceeding, or the nature of the success. It is irrational to deny successful litigants their costs for the reason that the applicant had lost on a technicality. A loss is a loss whatever be the reason. To place reliance on undisclosed 'intrinsic circumstances' is irrational and an improper exercise of judicial discretion.
Administrative Law — Appellate jurisdiction — Scope of appeal — Article 35A of Treaty — Points of law, lack of jurisdiction, procedural irregularity
Under Article 35A of the Treaty, an appeal from the judgment or any order of the First Instance Division of the Court lies to the Appellate Division only on points of law, grounds of lack of jurisdiction, or procedural irregularity. A Court commits an error of law when it misapprehends the nature, quality, and substance of the evidence; draws wrong inferences from the proven facts; or ignores, misapprehends, or misapplies a pertinent law or principle of law. A Court commits a procedural irregularity when it acts irregularly in the conduct of a proceeding or hearing leading to a denial or failure of due process, such as irregularly admitting or denying admission of evidence, denying a party a hearing, or ignoring a party's pleadings.

Legislation cited (16)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 35A
  • Treaty for the Establishment of the East African Community Article 40
  • Treaty for the Establishment of the East African Community Article 53(1)
  • Treaty for the Establishment of the East African Community Article 57(1)
  • East African Legislative Assembly Rules of Procedure Rule 6(1)
  • East African Legislative Assembly Rules of Procedure Rule 6(e)
  • East African Legislative Assembly Rules of Procedure Rule 12(1)
  • East African Court of Justice Rules of Procedure Rule 1(2)
  • East African Court of Justice Rules of Procedure Rule 36
  • East African Court of Justice Rules of Procedure Rule 37
  • East African Court of Justice Rules of Procedure Rule 43
  • East African Court of Justice Rules of Procedure Rule 47
  • East African Court of Justice Rules of Procedure Rule 92(4)
  • East African Court of Justice Rules of Procedure Rule 111

Cases cited (17)

  • Crane Finance Co. Ltd v Makerere Properties (Supreme Court Civil Appeal No. 1 of 2001)
  • Attorney-General of the United Republic of Tanzania v African Network for Animal Welfare (EACJ Appeal No. 3 of 2011)
  • Amrik Singh Kalsi v Bhupinder Singh Kalsi [2012] eKLR
  • Oyugi v Law Society of Kenya & Another [2005] eKLR 463
  • Simon Peter Ochieng v Attorney-General of the Republic of Uganda (EACJ Appeal No. 4 of 2015)
  • Angella Amudo v Secretary General of the East African Community [2012-2015] EACJLR 592
  • Peters v Sunday Post [1958] EA 424
  • Ludovick Sebastim V R, (CAT) Criminal Appeal No. 518 of 2007 (unreported)
  • Trevor Price & Another vs. Raymond Kelsel [1957] EA 752
  • Wynn Jones Mwambo v Weadoa Petro Aaron [1966] EA 241
  • Attorney General of the Republic of Rwanda v Union Trade Centre Ltd (EACJ Appeal No. 2 of 2000)
  • Attorney-General of the United Republic of Tanzania v African Network for Animal Welfare (EACJ Appeal No. 3 of 2014)
  • Timothy Kahoho v Secretary-General of EAC [2012-2015] EACJLR 412
  • Attorney-General of the United Republic of Tanzania v Anthony Calist Komu (EACJ Appeal No. 2 of 2015)
  • Simon Peter Ochieng and John Tusiime v Attorney-General of the Republic of Uganda [EACJ]
  • Dr. Margaret Zziwa v Secretary-General of EAC (EACJ Appeal No. 2 of 2017)
  • Anyang Nyong'o v Attorney-General of Kenya [Taxation Cause No. 6, arising from Reference No. 1 of 2006]

Full judgment

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Attorney General of Burundi v Secretary General East African Community (Appeal 2 of 2019) [2020] EACJ 6 (4 June 2020)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.