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

Ulii

Automated Summary

Key Facts

In 1997, Mr. Desire Manariyo bought three adjacent parcels of land in Kibenga Rural, Bujumbura from three sellers. He consolidated the land and obtained Certificate of Title No.1/1875, which was later sub-divided and sold to new buyers including Theodore Niyongabo and Gerard Niyungeko. In 2010, heirs of the late Pascal Bindariye and Francois Biniga lodged separate cases against the First Applicant before the Tribunal de Grande Instance de Bujumbura. On 27th December 2016, the Tribunal annulled the First and Second Applicants' certificates of title. The Applicants filed Reference No. 4 of 2017 before the East African Court of Justice challenging the legality of this decision, alleging violations of the EAC Treaty, Common Market Protocol, and African Charter on Human and Peoples' Rights. The Court found the Third Applicant (Manariyo) lacked locus standi due to non-residence in an EAC Partner State, the Reference was not time-barred, and was not res judicata. The Court held the Tribunal's decision was legal and in compliance with Burundian law and the rule of law principle.

Transaction Type

Sale of land/property transactions involving Certificate of Title No.1/1875

Issues

  • Whether the Reference is res judicata. The Respondent argued the matters in Reference No. 8 of 2015 and the present Reference were essentially the same. The Court found that while the Third Applicant was a party to the earlier Reference, the First and Second Applicants were not, and even against the Third Applicant, the legal claims differed sufficiently to preclude res judicata.
  • 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. The Applicants alleged the Tribunal de Grande Instance of Bujumbura violated Burundian law and the rule of law principle, but the Court found the Tribunal addressed issues in conformity with Burundian law and the judgment was legal.
  • Whether the Reference is time-barred. The Respondent contended the title deeds were issued in 1999 and 2001, rendering the Reference time-barred. However, the Applicants filed within two months of receiving notice of the impugned judgment on 18th January 2017, and the Reference was filed on 17th March 2017, within the prescribed time frame under Article 30(2) of the Treaty.
  • Whether this Honourable Court has jurisdiction to determine the Reference. The Respondent argued the Court lacked appellate jurisdiction over municipal court decisions, while Applicants contended the Court had jurisdiction under Articles 23, 27, and 30 of the EAC Treaty to interpret and apply the Treaty provisions regarding the impugned judgment.
  • 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 violated the Applicants' rights to peaceful enjoyment of property. The Court found property rights do not accrue to persons who acquire property irregularly, and the Applicants bore the onus of proof which they did not discharge to the requisite standard.
  • Whether the Applicants are entitled to the remedies sought. The remedies sought included declarations of unlawfulness, restoration of property rights, reparations, and orders for implementation reports. Having answered the preceding issues in the negative on substantive grounds, the Court found the remedies untenable and ordered each Party to bear its own costs.

Holdings

The Reference is dismissed. The Court has jurisdiction to determine the Reference; the matter is not time-barred and is not res judicata. The Respondent did not violate Articles 6(d) and 7(2) of the Treaty, Article 15(1) of the Common Market Protocol, or Article 14 of the African Charter on Human and Peoples' Rights. The Applicants are not entitled to the remedies sought. Each party to bear its own costs.

Remedies

Each Party to bear its own costs

Legal Principles

  • The court examined whether the Reference was res judicata given the earlier Reference No. 8 of 2015, ultimately determining the doctrine did not apply due to different parties and distinct legal issues between the two References.
  • The court evaluated whether the Tribunal de Grande Instance of Bujumbura flouted Burundi national law, which would constitute a violation of the rule of law principle under Articles 6(d) and 7(2) of the EAC Treaty. The court found the Tribunal's decision was in conformity with Burundian law and thus compliant with the rule of law principle.
  • The court applied the 'balance of probabilities' standard for decisions from lower domestic courts, distinguishing this from the higher standard required for apex court decisions in international claims involving state responsibility.
  • The court assessed the international responsibility of Burundi through its judicial organ's decision, treating the Tribunal's judgment as a state act under international law and evaluating compliance with EAC Treaty obligations.
  • The court relied on Article 276 of the Burundi Civil Code, which prohibits selling property one does not own, finding the sale agreements were nullified because sellers lacked ownership of the land they purported to sell.
  • The court evaluated whether the Third Applicant was a bona fide purchaser, finding no proof that the applicant had good faith without notice of adverse claims, as the sellers conceded the land belonged to the deceased Bindariye's family.
  • The court established that the Applicants bore the legal burden to prove the illegalities they sought to attribute to the Respondent State, citing the principle that 'the litigant seeking to establish a fact who bears the burden of proving it.'

Precedent Name

  • The East African Civil Society Organisations' Forum (EACSOF) vs. The Attorney General of Burundi & Others
  • Bosnia & Herzegovina vs. Serbia & Montenegro
  • Mohamed Abubakari Vs. The United Republic of Tanzania
  • Henry Kyalimpa vs. Attorney General of Uganda
  • Burundi Journalists' Union vs. The Attorney General of the Republic of Burundi
  • South-West Africa Cases (Ethiopia vs. South Africa; Liberia vs. South Africa)
  • Alex Thomas vs. The United Republic of Tanzania
  • Steven Dennis Vs. The Attorney General of the Republic of Burundi & Others
  • Venant Masenge vs. the Attorney General of Burundi
  • Manariyo Desire vs. The Attorney General of the Republic of Burundi
  • The Attorney General of the Republic of Burundi vs. The Secretary General of the East African Community
  • British American Tobacco Ltd (BAT) vs. The Attorney General of the Republic of Uganda

Cited Statute

  • EAC Treaty and African Charter provisions on rule of law and property rights
  • Burundi Code of Civil Procedure Article 142
  • EACJ Rules of Procedure Rule 39
  • Burundi Civil Code Article 33 (Volume III)
  • Burundi Civil Code Article 303
  • Burundi Civil Code Article 276
  • Burundi Land Law Article 344 (2011)
  • Burundi Code of Civil Procedure Article 137(1)
  • Burundi Constitution Article 205

Judge Name

  • Hon. Lady Justice Monica K. Mugenyi
  • Hon. Justice Charles Nyachae
  • Hon. Justice Dr. Faustin Ntezilyayo

Passage Text

  • 27. Similarly, recourse to this Court with regard to a decision of the Tribunal de Grande Instance of Bujumbura would not amount to the invocation of an unavailable appellate jurisdiction but, rather, the application of the jurisdiction conferred upon this Court under Article 27(1) of the Treaty. We so hold.
  • 82. In the result, we are satisfied that the domestic process applied by the Tribunal de Grande Instance of Bujumbura in this matter did address the issues that were before it in conformity with Burundian law. We find the resultant judgment to have been legal and, to that extent, is in compliance with the rule of law principle enshrined in Articles 6(d) and 7(2) of the Treaty. It is also in tandem with the property rights encapsulated in Article 15(1) of the Common Market Protocol and Article 14 of the African Charter on Human and Peoples Rights. We would therefore answer Issues 4 and 5 in the negative.
  • 73. On that premise, we are unable to fault the impugned judgment on the basis of the complaints advanced by the Applicants or at all. To begin with, the Third Applicant's primary legal interest in the disputed land had been the subject of an Appeal in the Supreme Court of Burundi. Quite clearly, the decision rendered by that court would have binding authority over the Tribunal. Therefore the Tribunal rightly decided to await the superior court's decision. That court having nullified the Third Applicant's interest in the Attested Affidavit, the First and Second Applicants' secondary interest would have been rendered nugatory but (in principle) for the Common Law notion of a bona fide purchaser. That notion hinges on the bona fides of a purchase; in other words, the purchase should have been 'made in good faith, without fraud or deceit.' Indeed, a bona fide purchaser has been defined as follows: One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.

Damages / Relief Type

  • Each Party to bear its own costs
  • Orders for reparations to the Applicants; Order directing Respondent to file progress report on remedial mechanisms
  • Declaration that Respondent's actions and omissions are unlawful and infringements of EAC Treaty and human rights provisions
  • Order directing Respondent to restore property rights of Applicants and their heirs or assigns