Masenge v A.G of Republic of Burundi (Application 5 of 2013)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Court declined to grant an interlocutory injunction restraining the Government of Burundi from using disputed land. While the Applicant's registered land title raised serious triable issues warranting interrogation under the Treaty, the Applicant failed to demonstrate that he would suffer irreparable injury that could not be compensated by damages. The balance of convenience did not favour granting the injunction. The application was dismissed with costs to abide the outcome of the main Reference.
Outcome
Application dismissed; main Reference to proceed to hearing
Facts
The Applicant, a Burundian resident, held a registered land title to 24 hectares in Gihanga Commune, Bubanza Province, issued by the Registrar of Land Titles on 9 August 2009. He alleged that local officials and their supporters encroached on his land and that the Government of Burundi, through the Governor of Bubanza Province, was parcelling out and selling the property, erecting buildings including a mosque, primary school, and football stadium, and permitting fish farming activities. Despite his complaints to the Minister of Home Affairs and other authorities, no action was taken to protect his property rights. The Applicant filed a Reference before the EACJ alleging violations of Treaty provisions and sought an interlocutory injunction to stop all construction and use of the land pending determination of the main Reference. The Respondent denied the Applicant's title was lawfully acquired and argued that a similar case was pending in the Administrative Court of Bujumbura.
Issues
- Whether the Court should grant an interlocutory injunction restraining the Respondent from using or changing the disputed land property.
- Whether the Applicant has demonstrated a serious question to be tried regarding his claim to the disputed land.
- Whether the Applicant would suffer irreparable injury if the injunction is not granted.
- Whether the balance of convenience favours granting the interlocutory injunction.
Orders
- Application for interlocutory injunction dismissed.
- Costs to abide the outcome of Reference No. 9 of 2012.
Rules and key headnotes
Legislation cited (16)
- Treaty for the Establishment of the East African Community Article 3(3)(b)
- 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 8(4)
- Treaty for the Establishment of the East African Community Article 27(1)
- Treaty for the Establishment of the East African Community Article 27(2)
- Treaty for the Establishment of the East African Community Article 30(1)
- Treaty for the Establishment of the East African Community Article 30(2)
- Treaty for the Establishment of the East African Community Article 23(1)
- EACJ Rules of Procedure Rule 1(2)
- EACJ Rules of Procedure Rule 2(2)
- EACJ Rules of Procedure Rule 2(3)
- EACJ Rules of Procedure Rule 2(4)
- EACJ Rules of Procedure Rule 21(2)
- Burundi Land Act 2011
- Constitution of Burundi
Cases cited (4)
- Giella v Cassman Brown & Co Ltd (1973) EA 358
- American Cyanamid Co v Ethicon Ltd [1975] All ER 504
- Mbidde Foundation Ltd and Margaret Zziwa v Secretary General of the East African Community and Attorney General of Uganda (EACJ Application No. 5 of 2014)
- Kahoho v Secretary General (EACJ Application No. 5 of 2012)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.