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Niyongabo and Others v Attorney General of the Republic of Burundi (Reference 4 of 2017)

East African Court of Justice · [2020] EACJ 25 · 2020 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice challenging the legality of a decision of the Tribunal de Grande Instance of Muha/Bujumbura for allegedly annulling the Applicants' Certificates of Title without sufficient reasons or following prescribed procedure
Decision
Reference dismissed; Third Applicant struck from proceedings for non-residence in an EAC Partner State; First and Second Applicants' claims dismissed on the merits

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 it had jurisdiction to review the legality of a Burundian tribunal's decision under the EAC Treaty without exercising appellate jurisdiction. The Court struck the Third Applicant from the Reference for non-residence in an EAC Partner State. The Reference was not time-barred and not res judicata. On the merits, the Court found that the Tribunal de Grande Instance of Bujumbura had properly applied Burundian law in nullifying sale agreements and certificates of title where the sellers did not own the land sold, and the transactions were tainted by fraud. The Respondent State did not violate the rule of law principle or property rights under the EAC Treaty, Common Market Protocol, or African Charter. Reference dismissed; each party to bear own costs.

Outcome

Reference dismissed; Third Applicant struck from proceedings for non-residence in an EAC Partner State; First and Second Applicants' claims dismissed on the merits

Facts

The Third Applicant purchased three adjacent parcels of land in Burundi in 1997 from three individuals, consolidated them, and obtained Certificate of Title No. 1/1875. He later subdivided the land and sold plots to the First and Second Applicants, who each bought two plots and obtained their own certificates of title. In 2010, heirs of deceased persons claiming ownership of the land sued the First Applicant. The Tribunal de Grande Instance of Bujumbura consolidated the claims and, after the Supreme Court of Burundi nullified the Third Applicant's Attested Affidavit No. 356/99 in a separate case, the Tribunal rendered judgment on 27 December 2016 annulling the sale agreements and the First and Second Applicants' certificates of title. The Tribunal found that the sellers did not own the land they purported to sell, that some sale agreements were forged, and that the transactions violated Burundian law. The Applicants' lawyer was notified of the judgment on 18 January 2017, and the Applicants filed this Reference on 17 March 2017.

Issues

  1. Whether the East African Court of Justice has jurisdiction to determine the Reference.
  2. Whether the matter is time-barred.
  3. Whether the matter is res judicata.
  4. Whether the Respondent violated Articles 6(d) and 7(2) of the EAC Treaty, Article 15(1) of the EAC Common Market Protocol, and Article 14 of the African Charter on Human and Peoples' Rights.
  5. Whether the Respondent's failure to recognize the legal and probative value of the Certificates of Title associated with the Applicants and the disregard of its own laws and provisions was unlawful and violates the Applicants' rights to peaceful enjoyment of property.
  6. Whether the Applicants are entitled to the remedies sought.

Orders

  • The Third Applicant (Manariyo Desire) is struck from the Reference for non-residence in an EAC Partner State.
  • The Reference is not time-barred.
  • The Reference is not res judicata.
  • The Respondent did not violate Articles 6(d) and 7(2) of the EAC Treaty, Article 15(1) of the Common Market Protocol, or Article 14 of the African Charter on Human and Peoples' Rights.
  • The Reference is dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Jurisdiction of the East African Court of Justice — International Review of National Court Decisions — Distinction from Appellate Jurisdiction
A reference to the East African Court of Justice challenging a decision of a national court does not constitute an appeal but rather the exercise of the Court's jurisdiction under Article 27(1) of the EAC Treaty to interpret and apply the Treaty and determine a Partner State's international responsibility under international law attributable to an action of one of its organs.
Exhaustion of Local Remedies — Not a Prerequisite under EAC Treaty
The exhaustion of local remedies is not a prerequisite for bringing a reference before the East African Court of Justice under the EAC Treaty or the Court's Rules of Procedure, and Partner States have freely chosen not to require exhaustion of local remedies in the EAC judicial system.
Locus Standi — Residence Requirement under Article 30(1) of the EAC Treaty
Under Article 30(1) of the EAC Treaty, only persons resident in a Partner State have locus standi to bring a reference before the East African Court of Justice. A person who attests in an affidavit to being in a location outside the EAC Partner States without affirming ordinary residence within an EAC Partner State lacks ratione personae to submit to the Court.
Rule of Law — Supremacy of Law — Compliance by National Courts with Domestic Law
One of the core components of the rule of law principle enshrined in Articles 6(d) and 7(2) of the EAC Treaty is the principle of supremacy of law, whether substantive or procedural. Fidelity to domestic law by national courts is the yardstick against which compliance with the rule of law principle is evaluated in international review.
International Review of National Decisions — Standard of Proof — Balance of Probabilities for Non-Apex Courts
While claims against a State involving charges of exceptional gravity concerning decisions of apex courts must be proved by evidence that is fully conclusive, the international review of decisions from lower domestic courts may be subjected to the ordinary balance of probabilities standard of proof.
Sale of Land — Nullification of Sale Where Seller Does Not Own the Property
Under Burundian law (Article 276 of the Civil Code), the sale of property that does not belong to the seller is null. A tribunal properly applies the law in nullifying such a sale where it is established that the sellers did not own the land they purported to sell, and the purchaser has not proven that he was a bona fide purchaser without notice of adverse claims.
Certificates of Title — Nullification Where Derived from Void Sale Agreements
Where certificates of title are derived from sale agreements that have been nullified by a court of competent jurisdiction for being void under domestic law, and the holders of the certificates have not proven that they were bona fide purchasers, the cancellation of such certificates of title is lawful and does not violate the rule of law or property rights under the EAC Treaty, Common Market Protocol, or African Charter on Human and Peoples' Rights.

Legislation cited (51)

  • 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 23(1)
  • 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 30(3)
  • Protocol on the Establishment of the East African Community Common Market Article 15(1)
  • African Charter on Human and Peoples' Rights Article 14
  • East African Court of Justice Rules of Procedure, 2013 Rule 1(2)
  • East African Court of Justice Rules of Procedure, 2013 Rule 3(1)(a)
  • East African Court of Justice Rules of Procedure, 2013 Rule 3(1)(d)
  • East African Court of Justice Rules of Procedure, 2013 Rule 39
  • East African Court of Justice Rules of Procedure (as amended) Rule 127
  • East African Court of Justice Rules of Procedure (as amended) Rule 136
  • Burundi Civil Procedure Code Article 5
  • Burundi Civil Procedure Code Article 28
  • Burundi Civil Procedure Code Article 31
  • Burundi Civil Procedure Code Article 34
  • Burundi Civil Procedure Code Article 110
  • Burundi Civil Procedure Code Article 117
  • Burundi Civil Procedure Code Article 118
  • Burundi Civil Procedure Code Article 121
  • Burundi Civil Procedure Code Article 132
  • Burundi Civil Procedure Code Article 133
  • Burundi Civil Procedure Code Article 134
  • Burundi Civil Procedure Code Article 137
  • Burundi Civil Procedure Code Article 137(1)
  • Burundi Civil Procedure Code Article 140
  • Burundi Civil Procedure Code Article 142
  • Burundi Civil Procedure Code Article 151
  • Burundi Civil Procedure Code Article 197
  • Burundi Civil Procedure Code Article 217
  • Burundi Civil Code Volume III Article 33
  • Burundi Civil Code Volume III Article 54
  • Burundi Civil Code Volume III Article 55
  • Burundi Civil Code Volume III Article 199
  • Burundi Civil Code Volume III Article 201
  • Burundi Civil Code Volume III Article 205
  • Burundi Civil Code Volume III Article 206
  • Burundi Civil Code Volume III Article 2014
  • Burundi Civil Code Article 276
  • Burundi Civil Code Article 303
  • Burundi Land Code, 2011 Article 313
  • Burundi Land Code, 2011 Article 317
  • Burundi Land Code, 2011 Article 344
  • Burundi Land Law of 1986 Article 379
  • Constitution of Burundi Article 205
  • Constitution of Burundi, 2005 Article 207
  • International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, 2002 Article 4(1)

Cases cited (25)

  • South-West Africa Cases (Ethiopia vs. South Africa: Liberia vs. South Africa); Second Phase, International Court of Justice (ICJ), 1966
  • Alex Thomas v The United Republic of Tanzania (Application 005/2013)
  • Mohamed Abubakari v The United Republic of Tanzania (Application 006/2003)
  • Burundi Journalists' Union v Attorney General of the Republic of Burundi (EACJ Reference No. 7 of 2013)
  • Manariyo Desire v Attorney General of the Republic of Burundi (EACJ Reference No. 8 of 2015)
  • Manariyo Desire v Attorney General of the Republic of Burundi (EACJ Appeal No. 1 of 2017)
  • Hon. Sitenda Sebalu v Secretary General of the East African Community & Others (EACJ Reference No. 1 of 2010)
  • Prof. Peter Anyang' Nyong'o & 10 Others v Attorney General of the Republic of Kenya & 2 Others (EACJ Reference No. 1 of 2006)
  • M/S Quick Telecommunications Ltd v Attorney General of the United Republic of Tanzania (EACJ Reference No. 10 of 2016)
  • The East African Civil Society Organisations' Forum (EACSOF) v Attorney General of Burundi & Others (EACJ Appeal No. 4 of 2016)
  • Steven Dennis v Attorney General of the Republic of Burundi & Others (EACJ Reference No. 3 of 2015)
  • Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina vs. Serbia & Montenegro), Judgment, ICJ Reports 2007, p.43
  • Mary Ariviza and Okotch Mondah v Attorney General of the Republic of Kenya & Another (EACJ Reference)
  • James Katabazi & 21 Others v Secretary General of the East African Community & Another (EACJ Reference)
  • Henry Kyarimpa v Attorney General of the Republic of Uganda (EACJ Reference)
  • Simon Peter Ochieng & Another v Attorney General of the Republic of Uganda (EACJ Reference)
  • Venant Masenge v Attorney General of Burundi (EACJ Reference No. 9 of 2012)
  • Military and para-military Activities in and against Nicaragua (Nicaragua vs. United States of America), Judgment, ICJ Reports 1984, p.437, para. 101
  • Henry Kyalimpa v Attorney General of Uganda (EACJ Appeal No. 6 of 2014)
  • British American Tobacco Ltd (BAT) v Attorney General of the Republic of Uganda (EACJ Reference No. 7 of 2017)
  • Raphael Baranzira & Another v Attorney General of the Republic of Burundi (EACJ Reference No. 15 of 2015)
  • Attorney General of the Republic of Burundi v Secretary General of the East African Community (EACJ Reference No. 2 of 2018)
  • Corfu Channel (United Kingdom vs. Albania), Judgment, ICJ Reports 1949, p.17
  • Ida Robinson Smith Putnam (USA) vs. United Mexican States, 1927, UNRIAA, Vol. IV, p. 151 at 153
  • Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p. 62 at pp. 87 - 88, paras. 62, 63

Full judgment

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Niyongabo and Others v Attorney General of the Republic of Burundi (Reference 4 of 2017) [2020] EACJ 25 (16 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.