Wakilii

Surl v Attorney General of the Republic of Burundi (Appeal 4 of 2022)

East African Court of Justice · [2023] EACJ 1 · 2023 Appeal Dismissed 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 arising from Reference No. 10 of 2018
Decision
Appeal dismissed; cross-appeal on costs allowed in favour of the Respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Appellate Division dismissed the appeal and held that there were no contradictions between the criminal judgment (RPS 70) and the civil judgment (RAA 1172 bis) of the Burundian courts, as both resulted in cancellation of the appellant's certificate of title. The Court held that decisions in criminal matters need not be consistent with decisions in civil matters involving the same parties because the allegations and standards of proof differ. The Minister of Justice's decision rejecting the appellant's request for review did not violate the Treaty provisions. The Court allowed the cross-appeal on costs and awarded costs to the respondent for both the appeal and the reference in the Trial Court.

Outcome

Appeal dismissed; cross-appeal on costs allowed in favour of the Respondent

Facts

ISAT SURL, a Burundian company, purchased land in Burundi in 2004 for BIF 350,000,000 and obtained a certificate of title. The original owner, Antoine Ntisigana, disputed the sale, claiming his attorney lacked authority. Multiple proceedings followed in Burundian courts. In criminal case RPS 70, the Supreme Court acquitted the accused of forgery but cancelled the appellant's certificate of registration. In civil case RAA 1172 bis, the Administrative Chamber annulled the transfer and certificate. The appellant sought review by the Minister of Justice under Burundian law, arguing the two judgments contradicted each other. The Minister rejected the request on 28 March 2018, finding no contradictions. The appellant then filed Reference No. 10 of 2018 in the EACJ First Instance Division, which was dismissed. The appellant appealed to the Appellate Division.

Issues

  1. Whether the First Instance Division of the East African Court of Justice erred in law when it found that the judgments RPS 70 and RAA 1172 bis did not reveal contradictions leading to the conclusion that the principle of res judicata did not apply to them.
  2. Whether the First Instance Division of the East African Court of Justice erred in law when it found that the decision of the Minister of Justice made on 28th March 2018 did not violate Articles 3(3)(b), 6(d), 7(2), 8(4), 27(1), 30(1) & (2), 81(2) and 127(2)(a) of the Treaty, Article 15(1) of the Protocol and Article 14 of the African Charter on Human and People's Rights.
  3. What remedies are the parties entitled to?

Orders

  • Appeal dismissed in its entirety.
  • Cross appeal on costs allowed.
  • Costs awarded to the Respondent in respect of the Appeal.
  • Costs awarded to the Respondent in respect of the Reference in the Trial Court.

Rules and key headnotes

Res Judicata — Criminal and Civil Judgments — Different Standards of Proof
A decision rendered in a criminal matter need not necessarily conform to a decision rendered in a civil matter between the same parties because the claims, the mode and standards of proof are different. The standard of proof in criminal matters is proof beyond reasonable doubt while proof in civil matters is on the balance of probabilities.
Res Judicata — Contradictory Judgments — Requirement for Review
For the principle of res judicata to apply, there must be contradictions between two final judgments. Where both a criminal judgment and a civil judgment result in the same substantive outcome (cancellation of a certificate of title), no contradiction exists and res judicata cannot be invoked to challenge the consistency of the decisions.
Ministerial Discretion — Review of Judicial Decisions — Sufficiency of Reasons
Where the law empowers a Minister to order a review of judicial decisions only upon finding contradictions between judgments, the Minister acts within the law in rejecting a request for review where no contradictions are established. The relevant law does not require a detailed decision for rejecting a request for review; it is sufficient that the Minister clearly informs the applicant that the impugned decisions contain no contradictions necessitating review.
Rule of Law — Treaty Violations — State Responsibility
The rule of law principle requires that all persons, institutions and entities are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated. A violation of Treaty provisions must be established by demonstrating that state action contravenes specific Treaty obligations. Where a Minister acts within the precincts of domestic law in exercising discretion, no violation of Treaty provisions on rule of law, good governance or human rights is established.
Appellate Procedure — New Issues on Appeal — Scheduling Conference
A court is duty bound to decide a case on the issues on record. Issues that were neither presented nor decided by the trial court, nor agreed upon during the scheduling conference, cannot be raised for the first time on appeal. The primary purpose of pleadings is to define issues and inform parties in advance of the case they have to meet.
Costs — Discretion of Court — Departure from General Rule
The general rule is that costs follow the event and a successful party should not be deprived of costs except for good cause. While a court may exercise discretion not to award costs where a case raises significant issues of Treaty interpretation and is brought in good faith, there must be compelling reasons to depart from the general rule. The mere fact that a litigant believed it filed a reference in good faith is not sufficient to deny costs to the successful party.

Legislation cited (15)

  • 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 30(1)
  • Treaty for the Establishment of the East African Community Article 30(2)
  • Treaty for the Establishment of the East African Community Article 81(2)
  • Treaty for the Establishment of the East African Community Article 127(2)(a)
  • Protocol on the Establishment of the East African Community Common Market Article 15(1)
  • African Charter on Human and People's Rights Article 14
  • Burundi Law No. 01/07 of 25th February 2005 Article 160
  • Burundi Law No. 1/08 of 13th March 2019
  • Burundi Law No. 1/26 of 15th September 2014
  • East African Court of Justice Rules of the Court, 2019 Rule 127

Cases cited (19)

  • Media Council of Tanzania and 2 Others v Attorney General of the United Republic of Tanzania (Reference No. 2 of 2017)
  • James Katabazi and 21 Others v Secretary General of the East African Community and Attorney General of Uganda (Reference No. 1 of 2007)
  • Niyongabo Theodore and Two Others v Attorney General of the Republic of Burundi (Reference No. 4 of 2017)
  • Steven Dennis v Attorney General of Burundi and 5 Others (Reference No. 3 of 2015)
  • Application of the Convention on the Prevention and Punishment on the Crime of Genocide (Bosnia & Herzegovina v Serbia & Montenegro) ICJ Reports 2007
  • Manariyo Desire v Attorney General of the Republic of Burundi (Appeal No. 1 of 2017)
  • Katende v Haridas Company Limited [2008] 2 E.A. 173
  • Singh v Qurbanlite Limited [1985] KLR 920
  • Charles Kajimanga and Marmetus Chilemya, Appeal No. 50 of 2014
  • Kishan Singh (D) Through L.Rs v Gurpal Singh & Others, August 2010
  • Igbal Singh Marwah & Another v Meenakshi Marwah & Another (2005) 4 sec 370
  • East African Civil Society Organisations' Forum
  • Farrel v Secretary of State [1980] 1 ALL ER 166 HL
  • Attorney General of the United Republic of Tanzania v Calist Komu (Appeal No. 2 of 2015)
  • Alcon International v Standard Chartered Bank of Uganda and Others [EACJ 2012-2015] p.430
  • Devram Manji Daltani v Danda [1949) EACA 35
  • Hussein Jan Mohamed & Sors v Twentsche Overseas Trading Co. Ltd [1967] EA p. 287
  • Supermarine Handling Services Limited v Kenya Revenue Authority, Civil Appeal No. 85 of 2006
  • Kiska Ltd v. De Angelis [1969} EA. 6

Full judgment

↓ Download PDF

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

Surl v Attorney General of the Republic of Burundi (Appeal 4 of 2022) [2023] EACJ 1 (23 February 2023)
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.