Wakilii

Mbidde v Attorney General of Burundi and Another (Application 6 of 2018)

East African Court of Justice · [2018] EACJ 77 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to intervene in Reference No. 2 of 2018 challenging the election of the Speaker of the East African Legislative Assembly
Decision
Applicant granted leave to intervene in Reference No. 2 of 2018

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that an application for leave to intervene must contain a statement of the intervener's interest as required by Rule 36(2)(e), but this statement need not be a separate document and may be included within the grounds of the application itself. The Court expunged the First Respondent's Affidavit in Reply for being incurably defective, as it was deposed by the advocate with conduct of the matter and failed to disclose sources of information not within the deponent's knowledge. The Court granted the Applicant leave to intervene in Reference No. 2 of 2018, finding that as a Member of the Assembly who participated in the impugned election, he had a direct and immediate interest in the litigation and his intervention would assist in clarifying the issues without enlarging them.

Outcome

Applicant granted leave to intervene in Reference No. 2 of 2018

Facts

On 19 December 2017, the Speaker of the 4th East African Legislative Assembly was elected without the participation of Members from Burundi and Tanzania. The Attorney General of Burundi subsequently filed Reference No. 2 of 2018 challenging the legality of that election on grounds of violation of quorum rules. Hon. Fred Mukasa Mbidde, a Member of EALA who participated in the election, applied for leave to intervene in the Reference in opposition to Burundi's case. The First Respondent objected, arguing that the Application did not contain a separate statement of interest as required by Rule 36(2)(e), that the leave granted by the Assembly was irregular due to lack of quorum, and that the Applicant's Affidavit in Reply was defective. The Second Respondent did not oppose the Application.

Issues

  1. Whether the Application for leave to intervene complies with the procedural requirements of Rule 36(2)(e) of the East African Court of Justice Rules of Procedure, specifically the requirement to contain a statement of the intervener's interest.
  2. Whether the First Respondent's Affidavit in Reply is admissible, given that it was deposed by the advocate with conduct of the matter and contains statements not within the deponent's knowledge without disclosure of sources.
  3. Whether the Applicant, as a Member of the East African Legislative Assembly, has a sufficient interest in Reference No. 2 of 2018 to warrant the grant of leave to intervene.
  4. Whether the Applicant's intervention would enlarge the issues in Reference No. 2 of 2018 or cause prejudice to the First Respondent.

Orders

  • Application for leave to intervene in Reference No. 2 of 2018 allowed.
  • First Respondent's Affidavit in Reply expunged from the record in its entirety.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Applications for Intervention — Statement of Interest — Form and Content
An application for leave to intervene under Article 40 of the Treaty and Rule 36 of the Court's Rules of Procedure must contain a statement of the intervener's interest in the result of the case as required by Rule 36(2)(e). However, this statement need not be a separate document from the application itself; it is sufficient that the interest is clearly set out in the body of the Notice of Motion stating the grounds of the application. A statement of interest expressed only in a supporting affidavit does not satisfy Rule 36(2)(e).
Evidence — Affidavits — Defective Affidavits — Advocate as Deponent
It is irregular and contrary to practice for an advocate with personal conduct of a case to swear an affidavit in that same matter. An advocate may be briefed as counsel in a case or may be a witness in a case, but should not act as both counsel and witness in the same case. Where the sole advocate for a party purports to concurrently double as the sole witness for that party, the affidavit is fatally defective.
Evidence — Affidavits — Defective Affidavits — Failure to Disclose Source of Information
An affidavit that attests to matters not within the deponent's knowledge without disclosing the source of information or verification is incurably defective and worthless. Where a deponent acknowledges receipt of information but neither the source of the information nor verification is disclosed, or where the deponent attests to matters that would not be readily known without disclosing the source, the affidavit ought never to be accepted by a court as justifying an order based on those so-called facts.
Civil Procedure — Applications for Intervention — Role of Intervener Distinguished from Amicus Curiae
Under Article 40 of the Treaty and Rule 36 of the Court's Rules, an intervener may advocate a point of view in support of one party over another and is restricted to submissions in respect of evidence supporting or opposing the arguments of a party to the case. An intervener has a partisan interest in the matter. In contrast, an amicus curiae has an interest in providing objective, cogent assistance to the court to engender the advancement of legal jurisprudence on a given subject and may address the court on questions of law and fact. An intervener may address the court on the law applicable to the facts that he or she seeks to substantiate, but would not be at liberty to address the court on issues of law as between the parties to the reference.
Civil Procedure — Applications for Intervention — Criteria for Grant of Leave
Intervention is appropriate where: (1) the non-party has a direct and immediate interest in the litigation; (2) intervention will not enlarge the issues in the case; and (3) the reasons for intervention outweigh any opposition by the existing parties. A Member of the East African Legislative Assembly who participated in an election challenged in a reference has a direct and immediate interest in that litigation. Where the intervener's participation would assist in clarification of the issues without enlarging them, and no injustice or prejudice would be suffered by the opposing party, it is in the interests of justice to grant leave to intervene.
Statutory Interpretation — Judicial Precedent — Ratio Decidendi Distinguished from Obiter Dicta
Introductory remarks in a court's judgment or ruling do not constitute the decision of the court or the ratio decidendi on which the decision is premised so as to establish a judicial precedent for courts. It is only that part of a judgment that represents the legal reasoning (ratio decidendi) of a case that is binding. Decisions of the First Instance Division of the East African Court of Justice have persuasive authority and may be departed from where the circumstances so warrant, albeit for demonstrably sufficient reason.
Administrative Law — East African Community — Legal Representation — Counsel to the Community
Under Articles 4(3), 9(1)(f) and 69(1) of the Treaty for the Establishment of the East African Community, legal personality is allotted to the office of the Secretary General on behalf of Organs of the Community, and that office is represented by the Counsel to the Community as the principal legal advisor to the Community. However, Article 40 of the Treaty does not prohibit a Member of the East African Legislative Assembly from participating in a case as an intervener simply on account of the case being premised on alleged activities or omissions of the Assembly. A Member of the Assembly, like any other resident of a Partner State, has locus standi to intervene in any case before the Court, provided that his or her residency is not in dispute.

Legislation cited (11)

  • Treaty for the Establishment of the East African Community Article 40
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 69(1)
  • Treaty for the Establishment of the East African Community Article 4(3)
  • Treaty for the Establishment of the East African Community Article 9(1)(f)
  • East African Court of Justice Rules of Procedure Rule 21(1)
  • East African Court of Justice Rules of Procedure Rule 36
  • East African Court of Justice Rules of Procedure Rule 36(1)
  • East African Court of Justice Rules of Procedure Rule 36(2)(e)
  • East African Court of Justice Rules of Procedure Rule 36(4)
  • East African Legislative Assembly Rules of Procedure Rule 12(1)

Cases cited (13)

  • Union Trade Centre (UTC) v Attorney General of Rwanda and Others (EACJ Application No. 9 of 2014)
  • Julie Folcik vs. Orange County Registrar of Voters & Another Superior Court of the State of California Case No. 30-2012-00553905
  • Advocats Sans Frontier v Mbugua Mureithi Wa Nyambura and 2 Others (EACJ Application No. 2 of 2013)
  • Anita A. Amongi vs. The Attorney General of the Republic of Uganda & Another
  • Christopher Mtikila vs. The Attorney General of the United Republic of Tanzania & Another
  • R v Secretary of State for India (1941) 2 All ER 546
  • Yunus Ismail t/a Bombo City Stores v Alex Kamukama and Others t/a Bazari (Supreme Court Civil Appeal No. 7 of 1987)
  • Francis Babumba and Others v Bunju (High Court Civil Suit No. 679 of 1990)
  • Phakey v World Wide Agencies Ltd (1948) 15 EACA 1
  • Bombay Flour Mill v Chunibhai M. Patel (1962) EA 803
  • Noormohammed Janmohamed v Kassamali Virji Madhani (1952) 20 EACA 8
  • UHAI EASHRI and Another v Human Rights Awareness and Promotion Forum (HRAPF) and Another (Consolidated Applications No. 20 and 21 of 2014)
  • Trusted Society of Human Rights Alliance vs. Mumo Matemo & 5 Others Petition No. 12 of 2013 (SCK)

Full judgment

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Mbidde v Attorney General of Burundi and Another (Application 6 of 2018) [2018] EACJ 77 (24 April 2018)
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.