Wakilii

Niyongabo and Another v Attorney General of the Republic of Burundi (Appeal No.5 of 2020)

East African Court of Justice · [2021] EACJ 33 · 2021 Appeal Allowed 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 challenging the dismissal of Reference No. 04 of 2017
Decision
Appeal allowed; each appellant awarded US$50,000 in compensation plus interest at 6% per annum from date of filing until payment in full; costs to the appellants.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held: the Appellate Division allowed the appeal on procedural grounds. The First Instance Division erred by raising the issue of fraud suo motu without giving the appellants a hearing, by failing to establish whether a special action for fraud had been undertaken as required by Burundian law before annulling the land titles, and by failing to recognise the appellants as bona fide purchasers for value without notice. The matter was remitted to assess compensation, and each appellant was awarded US$50,000 as compensation for deprivation of property without due process, plus interest at 6% per annum.

Outcome

Appeal allowed; each appellant awarded US$50,000 in compensation plus interest at 6% per annum from date of filing until payment in full; costs to the appellants.

Facts

The appellants purchased two plots each from Mr. Desire Manariyo, who had consolidated three parcels of land purchased from three individuals in 1997, obtained a certificate of title, and subsequently subdivided and sold plots to the appellants. The appellants took possession, farmed the land, and sold portions to bona fide purchasers who built homes. In 2010, claimants challenged the ownership before the Tribunal de Grande Instance de Bujumbura. On 27 December 2016, the Tribunal annulled the appellants' certificates of title based on the Supreme Court of Burundi's earlier nullification of the original seller's attested affidavit. The appellants filed Reference No. 04 of 2017 before the First Instance Division challenging the legality of the Tribunal's decision for allegedly failing to follow the special procedure prescribed for annulling certificates of title and for failing to give sufficient reasons. The First Instance Division dismissed issues 4, 5, and 6 of the Reference.

Issues

  1. Whether the First Instance Division committed a procedural irregularity by holding that the appellants did not provide sufficient proof of violations of Articles 6(d) and 7(2) of the East African Community Treaty, Article 15(1) of the Common Market Protocol and Article 14 of the African Charter on Human and People's Rights.
  2. Whether the First Instance Division committed a procedural irregularity by questioning suo motu the accuracy of appellant's assertions concerning fraud.
  3. Whether the First Instance Division committed a procedural irregularity by failing to exercise its inherent powers to seek information vital to its judgment.
  4. Whether the First Instance Division erred in law in failing to recognise Appellants as bona fide purchasers for value without notice.
  5. Whether the parties are entitled to remedies sought.

Orders

  • Appeal allowed.
  • The First Instance Division committed a procedural irregularity by questioning suo motu the issue of fraud.
  • The First Instance Division erred by failing to establish whether a special action for fraud was undertaken as required by Burundian law.
  • The First Instance Division erred in law by failing to recognise the appellants as bona fide purchasers for value without notice.
  • Each appellant awarded US$50,000 as compensation for deprivation of property without due process.
  • Interest on the compensation awarded at the rate of 6% per annum from the date of filing of the Reference until payment in full.
  • Costs of the appeal to be borne by the Respondent.

Rules and key headnotes

Procedural Irregularity — Raising New Issues Suo Motu Without Hearing
A court commits a procedural irregularity when it raises an issue suo motu, such as fraud, which is not part of the pleaded issues, and proceeds to determine that issue without affording the parties an opportunity to be heard.
Burden of Proof — Effect of Striking Out Sole Affidavit
Where a party's sole affidavit is struck out, the court retains inherent powers under its rules to consider other subsisting evidence on record to meet the ends of justice, rather than automatically ruling in favour of the party whose affidavit was not struck.
Judicial Review — Failure to Follow Mandatory Procedure
A court errs when it fails to establish whether a mandatory special action for fraud was undertaken as required by domestic law before nullifying registered land titles, particularly where the appellants raised this objection.
Bona Fide Purchaser — Universal Principle
The principle of the bona fide purchaser for value without notice is a universal principle applicable in both common law and civil law systems, and bad faith is not presumed. A court errs in law by failing to recognise purchasers as bona fide purchasers where there is no evidence that they purchased in bad faith or had notice of fraud.
Right to Property — Deprivation Without Due Process
Cancellation of land titles without establishing fraud through proper procedure and without assessing consequential compensation constitutes a violation of the right to property guaranteed under Article 14 of the African Charter on Human and Peoples' Rights, which permits encroachment only in accordance with appropriate laws.
Compensation for Deprivation of Property
Compensation is available under international law for breach of treaty obligations where the act of a Partner State causes financially assessable loss, and where litigation has been protracted, a lump sum award in general terms may be granted for deprivation of property without due process.

Cases cited (17)

  • Simon Peter Ochieng' v Attorney General of Uganda (Appeal No. 4 of 2015)
  • Attorney General of Tanzania v African Network for Animal Welfare (Appeal No. 3 of 2011)
  • Angella Amudo v Secretary General of the East African Community (Appeal No. 4 of 2014)
  • Oladeji (NIG) vs. Nigeria Breweries
  • Oyugi vs Law Society of Kenya & Another Civil Suit 482 of 2004
  • Bosnia & Herzegovina vs Serbia & Montenegro, [2007] ICJ 2
  • Attorney General of Burundi v Secretary General of the East African Community (Reference No. 2 of 2018)
  • Crane Finance Co. Ltd Vs Makerere Properties, S.C.C.A No of 2001
  • Habig Nig Bank Limited Vs. Nashtex International Nig Ltd, Nigeria Court of Appeal Kaduna Division CA/K/13/04
  • EACSOF vs. The AG of Burundi and others
  • Henry Kyarimpa v Attorney General of Uganda (Appeal No. 6 of 2014)
  • Simon Peter Ochieng' and John Tusiime v Attorney General of Uganda (Appeal No. 4 of 2015)
  • Alcon International Limited v Standard Chartered Bank of Uganda (Reference No. 6 of 2010)
  • Katende vs. V Haridas & Company Limited (2008) 2 E.A 173
  • Lake Lanoux Arbitration France v. Spain, International Law Report, vol.24, p. 126
  • Margaret Zziwa v Secretary General of the East African Community (Appeal No. 2 of 2017)
  • Manariyo Desire v Attorney General of Burundi (Appeal No. 1 of 2017)

Full judgment

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

Niyongabo and Another v Attorney General of the Republic of Burundi (Appeal No.5 of 2020) [2021] EACJ 33 (26 November 2021)
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.