Wakilii

Ngaruko v Attorney General of the Republic of Burundi (Application 3 of 2019)

East African Court of Justice · [2020] EACJ 3 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim orders arising from Reference No. 9 of 2019 challenging alleged compulsory acquisition of property by the Republic of Burundi without due process or compensation
Decision
Interim orders granted preserving the status quo pending determination of Reference No. 9 of 2019

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice held that the applicant demonstrated a serious triable issue regarding alleged compulsory acquisition of property without due process in violation of Treaty obligations, and that on the balance of convenience the applicant stood to suffer graver injury from eviction than the respondent would suffer from temporary stay of execution. The Court granted interim orders to preserve the status quo pending determination of the substantive reference, applying the trifold test of serious triable issue, irreparable injury, and balance of convenience.

Outcome

Interim orders granted preserving the status quo pending determination of Reference No. 9 of 2019

Facts

The Applicant claimed ownership of land registered as Reg. File E.XXXVI folio 129 inherited from his deceased father Evariste Sebatutsi, plus an additional 10 acres he personally acquired. In November 2014, the Burundi National Commission of Land and Other Property dismissed claims by neighbouring proprietors but also disentitled the Applicant and his father's Estate from the land. Following unsuccessful appeals, the Special Court of Land and Other Property declared the property 'a property without master for the State's benefit', which decision was upheld on second degree appeal. The Applicant filed Reference No. 9 of 2019 in the EACJ challenging the legality of what he perceived as compulsory acquisition without due process or compensation. He then filed this Application seeking interim orders to prevent execution of the Special Land Court orders and possible alienation of the property, which he contended included his residential home and commercial property. The Respondent contended that execution had already occurred and the Applicant's residential property was not affected.

Issues

  1. Whether the Court should grant interim orders to preserve the status quo pending determination of the underlying Reference challenging the legality of compulsory acquisition of property.
  2. Whether the Application was filed within the time prescribed by the Court's Rules of Procedure.
  3. Whether there exists a serious triable issue in the underlying Reference.
  4. Whether the Applicant would suffer irreparable injury if the interim orders were not granted.
  5. Where the balance of convenience lies as between the parties.

Orders

  • Application for interim orders granted.
  • Costs of the Application to abide the outcome of the underlying Reference.
  • Reference No. 9 of 2019 directed to be fixed for hearing forthwith.

Rules and key headnotes

Interim Injunctions — Trifold Test — Serious Triable Issue Within Context of Community Law
Within the context of East African Community law, a serious triable issue exists where the Reference raises a legitimate legal question under Article 30(1) of the Treaty, specifically where it is contended that the matter complained of violates the national law of a Partner State or infringes any provision of the Treaty. Causes of action before the EACJ are grounded in the Court's interpretative and enforcement function under Article 23(1) of the Treaty rather than the enforcement of typical common law rights.
East African Court of Justice — Jurisdiction to Review National Court Decisions
The East African Court of Justice has jurisdiction to interrogate the decisions of national courts to deduce their compliance with the Treaty (or the lack of it) as part of the Court's interpretative mandate under the Treaty.
Interim Injunctions — Irreparable Injury — Adequacy of Damages
Irreparable injury arises in applications for interim orders where an award of damages would not be sufficient recompense for the loss or injury suffered by an applicant. Where damages in the measure recoverable at common law would be an adequate remedy and a respondent would be in a position to pay them, no interim injunction should normally be granted. Damages would be inadequate where they would be difficult to assess, for instance where there is disruption of business.
Interim Injunctions — Balance of Convenience — Status Quo Ante
Where a court is in doubt as to the existence of a serious triable issue or the adequacy of damages, the matter shall be decided on the balance of convenience. The applicable status quo ante is the state of affairs before a respondent commenced the conduct complained of by an applicant, unless there has been unreasonable delay in filing the application for interim orders, in which case it would be the state of affairs immediately before the application. Where other factors appear to be evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo.
East African Court of Justice — Rules of Procedure — Application with Necessary Adaptation
The East African Court of Justice, sitting as it does on an ad hoc basis albeit temporarily, applies its Rules of Procedure with necessary adaptation. Until such time as the operational status of the Court is varied by the East African Community's decision-making organs, the application of the Rules would continue on that basis. Failure to comply with administrative time limits prescribed in the Rules is a matter that should not under any circumstances be visited upon an applicant.

Legislation cited (7)

  • Treaty for the Establishment of the East African Community Article 39
  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Treaty for the Establishment of the East African Community Article 23(1)
  • East African Court of Justice Rules of Procedure Rule 21(2)
  • East African Court of Justice Rules of Procedure Rule 21(3)
  • East African Court of Justice Rules of Procedure Rule 73(2)

Cases cited (15)

  • Forum pour le Renforcement de la Societe Civile (FORSC) & Others v Attorney General of the Republic of Burundi (Application No. 16 of 2016)
  • British American Tobacco (BAT) v Attorney General of Uganda (Application No. 13 of 2017)
  • Ololosokwan Village Council & Others v Attorney General of the United Republic of Tanzania (Application No. 15 of 2017)
  • Giella v Cassman Brown (1973) EA 258
  • American Cyanamid Company v Ethicon Limited [1975] AC 396
  • The Siskina [1979] AC 210
  • Prof. Peter Anyang' Nyong'o & 10 Others v Attorney General of Kenya & 3 Others (Application No. 1 of 2006)
  • Timothy Alvin Kahoho v Secretary General of the East African Community (Application No. 5 of 2012)
  • Sitenda Sebalu v Secretary General of the East African Community & Others (Reference No. 1 of 2010)
  • Simon Peter Ochieng & Another v Attorney General of the Republic of Uganda (Reference No. 11 of 2013)
  • East African Civil Society Organisations' Forum (EACSOF) v Attorney General of Burundi & Others (Appeal No. 4 of 2016)
  • Mbidde Foundation Ltd & The Rt. Hon. Margaret Zziwa
  • East African Industry v True Foods (1972) EA 420
  • Cayne v Global Natural Resources PLC (1984) 1 All ER 225
  • Garden Cottage Foods v Milk Marketing Board (1984) AC 130

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ngaruko v Attorney General of the Republic of Burundi (Application 3 of 2019) [2020] EACJ 28 (5 February 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.