denis masha wekesha vs the east african community 2023 tzhccomd 265 4 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT ARUSHA COMMERCIAL CASE NO. 3 OF 2023 BETWEEN DENIS MASHA WEKESA..............................................PLAINTIFF Versus THE EAST AFRICAN COMMUNITY.............................. DEFENDANT Date of Last Order: 13th June, 2023 Date of Ruling: 4th August, 2023 RULING MKEHA, J In the present suit, declaratory reliefs and damages are being sought by the plaintiff against the defendant (The East African Community). A preliminary point of objection has been preferred regarding maintainability of the suit. That, the suit against the defendant is not maintainable for being barred in law as the defendant enjoys immunity from legal process in the United Republic of Tanzania under Articles 138 and 142 of the Treaty Page 1 of 4 for the Establishment of the East African Community, Article IV section 1 paragraphs (a) and (b) of the Headquarters Agreement between the Government of the United Republic of Tanzania and the Secretariat of the East African Community and section 13 together with paragraphs 1 and 2 of the Fourth Schedule of the Diplomatic and Consular Immunities and Privileges Act. The preliminary point of objection was argued by way of written submissions. Whereas the plaintiff was represented by Mr. Abdallah Ally Issa learned advocate, the defendant was represented by Mr. Dennis Kibirige and Ms. Florence Ochago learned advocates. The learned advocates for the defendant submitted in support of the preliminary point of objection that, preferring the present suit against the East African Community was contrary to the requirements of the law. In view of the learned advocates, the privileges and unqualified immunities provided under Article 138 of the Treaty were absolute to the extent that the East African Community could not be subjected to legal processes in the United Republic of Tanzania. The learned advocates for the defendant insisted that, the Treaty had been ratified and domesticated by the United Republic of Tanzania. In view of the learned advocates for the defendant, Page 2 of 4 in the event the suit is determined in the plaintiffs favour, the resultant decree would not be executable. Mr. Abdallah Issa Ally learned advocate submitted in reply that, the business transaction between the plaintiff and the defendant was not one of the objectives under Article 5 of the Treaty as to attract immunity in favour of the defendant. According to the learned advocate, the preferred objection was not a pure point of law as its determination attracted consideration of evidence. The learned advocate submitted generally that, the prospective decree would be executable. Paragraphs (a) and (b) of Article IV, Section I of the Headquarters Agreement state that: (a) "The secretariat, its property and assets shall enjoy immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity. It is however understood that no waiver of immunity shall extend to any measure of execution. (b) The property and assets of the Secretariat shall be immune from search requisition, confiscation, expropriation and anyjudicial or legislative action'’. The relevant paragraphs of the Agreement as quoted hereinabove indicate in clear terms the way the Secretariat enjoys immunity in terms of its property and assets. Therefore, as correctly submitted by the learned Page 3 of 4 advocates for the defendant, the court has no jurisdiction to try the suit. The suit is thus dismissed for want of jurisdiction. Dated at ARUSHA this 4th day of August, 2023. C. P M JUDGE 04/08/2023 Court: Ruling is delivered in the presence of Mr. Abdallah Issa Ally learned advocate for the plaintiff. JUDGE 04/08/2023 Page 4 of 4