surl v attorney general of republic of burundi application no4 of 2023 arising from appeal no4 of 2022 arising from reference no10 of 2018 2025 eacj 6 3 march 202

THE EAST AFRICAN COURT OF JUSTICE AT KIGALI, RWANDA APPELLATE DIVISION (Coram: VP. Anita Mugeni, Kathurima M'lnoti & Barishaki Cheborion, JJA.) APPLICATION NO. 4 OF 2023 (ARISING FROM APPEAL NO. 4 OF 2022) (ARISING FROM REFERENCE NO. 10 OF 2018) BETWEEN ISAT SURL ...... ............................... ..............................APPLICANT AND ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI. ...........................................RESPONDENT (Application for review of the judgment of the Appellate Division dated 23'd February 2023 in Appeal No. 4 of 2022 arising from Reference No. 10 of 2018) 1 RULING OF THE COURT Introduction 1. This Court was moved by ISAT Suri (the Applicant) by a Notice of Motion dated 4th August 2023 for review of the Judgment, Ruling and Orders of the Court in Appeal No. 4 of 2022 which arose out of Reference No. 20 of 2018, ISAT Suri v. Attorney General of Burundi. The Application was brought under Rules 4, 52(1), (2), (4), (5), (6), (7) (a), (b) ,(8), 81, 82, 83, 120, 121 and 123 of the East African Court of Justice Rules of Procedure, 2019 (the Rules). 2. The Applicant is a company registered and resident in the Republic of Burundi, a Partner State in the East African Community and is represented in this Application by Mr. Justin Semuyaba, Advocate. 3. The Respondent is the Attorney General of the Republic of Burundi, a Partner State to the Treaty Establishing the East African Community (The Treaty) and is represented by Mr. Diomede Vyizigiro and Mr. Barankitse Pacifique, both from the Attorney General's Office of the Republic of Burundi. BACKGROUND 4. Sometime in January 2004, the Applicant entered into a contract with one Maitre Augustin Mabushi who said he was representing the registered owner Ntisigana Antoine in the sale of property comprised in Asian Quarter under land title Vol. EGL XXI Folio 17, plot No. 6510 Division A in Burundi (the property). Upon purchase and payment being made, the title 2 deed to the property was transferred into the names of the Applicant by the Registrar of Titles. 5. Later, a dispute arose between the parties where Mr. Ntisigana asserted that there was no sale of the property because Mr. Mabushi who had signed the sale agreement did not have the mandate to execute the contract on his behalf. That he had never given Mabushi authority to sell his property and that any contract signed on his behalf by the said Mabushi was null and void. 6. The dispute was referred to the Administrative Court of Bujumbura in RAA 781 against the State of Burundi by Mr. Ntisigana in which he sought annulment of transfer of the suit property to the Applicant. The Administrative Court in its decision RAEP 93 of January 2008 cancelled the lease made in favor of the Applicant and the contract of sale between the Director of Land Titles and the Applicant. The Administrative Court also cancelled the Certificate of registration of the land. The Applicant was dissatisfied with the decision and appealed. 7. Mr. Ntisigana appealed against the Ruling of the Court in RAA 781 to the Supreme Court Chamber of Cassation. The Applicant was joined as an interested party. In its decision RCC 19782 the Chamber overturned the decision of the Court and referred the case back to the Administrative Chamber o.f the Supreme Court. 8. In the meantime, the Administrative Court in judgment RAA 1172 bis annulled the decisions to transfer the lease in .favor o.f the Applicant. The contract of sale dated 1' 1 April 2005 between the Director o.f Land Titles and the Applicant as well as the certificate o.f registration o.f the property 3 in favor of the Applicant were also annulled. The Applicant appealed against the judgment RAA 1172 bis to the Supreme Court which declared inadmissible the second appeal against the said judgment RAA 1172 bis on the ground that it did not raise any points of law. 9. Dissatisfied with the decision of the Administrative Chamber of the Supreme Court, Mr. Ntisigana instituted a criminal case against the Registrar of Titles, Mr. Mabushi and Mr. Salim Alibhai the owner of the Applicant alleging forgery. In a decision RPS 70, the Judicial Chamber of the Supreme Court acquitted the three of the charges of forgery and cancellation of the Certificate of Title. A subsequent appeal to the Judicial Chamber of the Supreme Court against the decision was equally dismissed. 10. The Applicant made a request for review to the Minister of Justice and Seals of the Republic of Burundi but the request was rejected. THE REFERENCE 11. Aggrieved by the decision of the Attorney General of the Respondent for not pursuing a 2"' Appeal in RTC 1141, the Applicant filed Reference No. 10 of 2018 in the First Instance Division of this Court (the Trial Court) alleging omissions by the Director of Title Deeds while registering the property in the names of the Applicant. He also faulted in the decision of the Minister of Justice made on 28th March 2018 where the Minister rejected the Applicant's request for review of the decision of the Supreme Court of Burundi in RTC 1141. 12. The Applicant pleaded that these acts violated Articles 3(3)(b), 6(d), 7(2), 8(4), 27(1 ), 30(1) and (2), 81 (2) and 127(2)(a) of the Treaty, Article 15 of 4 the East African Community Common Market Protocol and Article 14 of the African Charter on Human and Peoples Rights. 13. He prayed to be reinstated as the registered proprietor of the suit property, paid compensation for loss of property and for loss of income. 14. The Trial Court found, inter a/ia, that the decisions of the Minister did not contravene the Treaty and dismissed the Reference in its entirety, with an order that each party bear their own costs. THE APPEAL 15. Dissatisfied with the decision of the Trial Court, the Applicant filed Appeal No. 4 of 2022 in this Court in which he faulted the Trial Court for finding that the decision of the Minister of Justice of 28th March 2018 did not violate the cited provisions of the Treaty. Secondly that Trial Court erred in holding that Judgments RPS 70 and RM 1172 bis were not contradictory because RPS 70 was a criminal matter while RM 1172 bis was a civil matter and that a decision in a criminal matter need not be consistent with a decision in a civil matter, although based on the same facts. 16. The Attorney General of Burundi was aggrieved by the Trial Court's failure to award him costs and filed a Cross Appeal. 17. The issues for determination in the Appeal and Cross Appeal were; (i) whether the Trial Court erred in law when it found that the judgments RPS 70 and RM 1172 bis did not reveal contradictions leading to the conclusion that the principle of res judicata did not apply to them; 5 (ii) whether the Trial Court erred in law when it held that the decision of the Minister of Justice made on the 28 th March 2018 did not violate Articles 3(3)(b), 6(d), 7(2), 8(4), 27(1), 30(1) and (2), 81 (2) and 127(2)(a) of the Treaty as amended, Article 15 of the EAC Common Market Protocol and Article 14 of the African Charter of Human and Peoples Rights. 18. On issue No.1, this Court agreed with the finding of the Trial Court that there were no contradictions between judgments RPS 70 and RAA 1172 bis because the two decisions resulted in the cancellation of the title hence making the transfer to the Applicant invalid and ineffective and that the result of the decision was that the property reverted to the original owner, the State of Burundi. The Court held further that it is an established principle of law that the decision on a criminal matter need not be consistent with a decision in a civil matter involving the same parties and allegations because the standards of proof are different. 19. On res judicata, the Court agreed with the Trial Court that the Applicant could not claim that there were inconsistencies and contradictions between the two judgements and at the same time raise the doctrine of res judicata which is a defence barring the same parties from litigating in a second suit on the same claim that has been definitively settled by a judicial decision of a court of competent jurisdiction. The Court coneluded that res judicata had not been established in the circumstances of the case. APPLICATION FOR REVIEW 20. Convinced that this Court had committed errors in its Judgment and that he had, in addition, discovered new evidence which was not 6 available at the time the judgment was rendered, the Applicant filed Application No. 4 of 2023 for review. In the Application he seeks for orders that the Judgment and orders of this Court in Appeal No. 4 of 2022 arising from Reference No. 10 of 2018, ISAT Suri v. The Attorney General of th.e Republic of Burundi, be reviewed or wholly set a side. Further that this Court using its inherent powers makes such orders or gives such directions as may be necessary for the ends of justice or to prevent abuse of the court process. 21. The Applicant further seeks that this Court guides on the interpretation as to who is "The original owner" of the property comprised in Asian Quarter under land title Vol. ECL XXI Folio 17, plot No. 6510 Division A. 22. The Application is premised on the assertion that there is discovery of a new and important matter which was not in the knowledge of the Applicant at the time the judgment was passed, which new matter he came to know of later upon carrying out due diligence. 23. The Applicant asserts that there is a mistake apparent on the face of the record which, if not corrected, will cause an injustice. 24. The Application is supported by an affidavit and affidavit in rejoinder both deponed by Salim Alibhai, the Managing Director of the Applicant. In a nutshell, the deponent avers that; this Court erred when it held that, it fully agreed with the finding of the Trial Court that there were no contradictions between the Judgment RPS 70 and RAA 1172 bis and that both decisions resulted in the cancellation of th.e certificate of title, thus rendering the transfer of the property to the Appellant invalid. That the court erred when it decided that the 7 property returns to "the original owner" yet the Applicant had produced the lease renewal contract LB 16.299 of 17 th January 2005 which provided for a one year tenancy starting on 1st October 2004 to January 2005. That this was in accordance with the rental contract LB 12.744 between the state of Burundi and Mr. Ntisigana as shown in appendices 2 and 3 to the Affidavit. 25. Further that since it had been discovered that Mr. Ntisigana died on the 11 th March 2016 prior to the conclusion of the Court proceedings in Appeal No. 4 of 2022, the Court ought to have understood that as a dead person the late Ntisigana could not conclude a valid contract of sale of the property with the State of Burundi because the contract was a prerequisite for registration of the land. Additionally, that the Certificate of Title was prepared on 31 st January, 2019, three years after the death of Ntisigana, yet the Judgment in Criminal Case RPS 70 ruled that the sale agreement of ISAT Suri was Legal. Lastly, he deponed that he had completed all obligations and had been registered as proprietor of the property with a building which he rented to the Embassy of the Republic of South Africa in Burundi at USD 7,000 per month. 26. The Respondent opposed the Application. Scheduling Conference 27. At the Scheduling Conference of the Application held on 23•d November 2023, the following two issues were agreed to for determination, namely: (a) whether this Court should review, interpret, correct, clarify or set aside its own Judgment dated 23•d February 2023 in 8 Appeal No. 4 of 2022 arising from Reference No.1 0 of 2018; and (b) what remedies are the parties entitled? Applicant's Case 28. The Applicant adverts that this Court committed procedural irregularities in its judgement in Appeal No. 4 of 2022 arising from Reference No. 10 of 2018, ISAT Suri v. The Attorney General of the Republic of Burundi, when it held that there were neither contradictions nor inconsistences between judgment RPS 70 and RAA 1172 bis. That is because both decisions resulted in cancellation of the certificate of title in the names of the Applicant, thus rendering the transfer and registration of the property in the name of Mr. Ntisigana who died on 11 th March 2016 null and void. 29. Counsel for the Applicant submitted that Mr. Ntisigana had not bought the property and therefore, did not own it. That he merely rented it with an option of purchase which purchase could only materialize if the land had been developed. 30. According to the Applicant's Counsel, Mr. Ntisigana died on 11 1" March 2016 before the Court proceedings in the Appellate Division of this Court in Appeal No. 4 of 2022 were concluded and for that reason he could not have transferred the property to the Respondent. 31. In his view, if the above facts were known and rightly evaluated by the Court, it would not have erroneously agreed with the findings of the Trial Court to return the property to the State of Burundi. 9 32. Counsel pointed out that Rules 4, 52(1), (2), (4), (5) and (6), 81, 82, 83,120, 121 and 123 of the Rules allow correction of Judgments through interpretation and review where there is discovery of a new point, an important matter or evidence which after exercise of due diligence was not within the applicant's knowledge, or could not be produced by it at the time when the Judgment was passed. That review is allowed on account of some mistake or error apparent on the face of the record, or because an injustice has been done. The party which desires a review of the Judgment may in those circumstances apply to Court. 33. In Counsel's opinion, review was necessary in this case because it would enable the Court to analyze its Judgment in Appeal No. 4 of 2022 since the Court had agreed with the Trial Court that, Judgment RPS 70 annulled the certificate of title to the Property Comprised in the Asian Quarter under land title Vol. ECL XXI Folio 17, plot No. 6510 Division A. and restored it to "The original owner", which to him was an erroneous finding. That this Court had wrongly agreed with the finding of the Trial Court. 34. The Applicant thus prayed for Court to correct this erroneous conclusion which this Court and the Trial Court would not have made, if they had been aware of this important piece of evidence, which in his view could not be produced at the time when the two Judgements were delivered. 35. The Applicant specifically seeks that this Court corrects the accuracy of the facts on record at the ninth Leaf of the Judgment RPS 70 where he asserts that it is explicitly stated that the litigation concerns transfer of a concession right and that Mr. Ntisigana was the "Concessionaire" and 10 not the owner of the property. To him, this fact was ignored by both the Trial Court and this Court. 36. Counsel went at length to submit that the Certificate of Title of the suit property didn't exist at the time of institution of the proceedings in Appeal No. 4 of 2022 and therefore, could not have been produced by the Applicant. That the only evidence of the status of the interest of Mr. Nlisigana was the lease renewal contract between the State of Burundi and Mr. Ntisigana, the tenant. 37. Counsel submitted that the procedure of issuing the title deed in this case to Mr. Ntisigana was not correct because in Burundi, for a Title Deed to be issued, there must be a sales contract between the State and the beneficiary. Because the Applicant had a sales contract he therefore, obtained its Title Deed properly while Mr. Ntisigana who never had a sales contract, his title was not properly issued. That, if the document in annex 3 had been known and in the possession of the Trial Court and this Court, it would have had a decisive influence on their Judgments because they would not have concluded that Mr. Ntisigana was the original owner. 38. For the above reasons, the Applicant requests this Court to correct this erroneous conclusion made by this Court in Appeal No. 4 of 2022 and in Reference No. 10 of 2018, ISAT Suri versus the Attorney General of the Republic of Burundi. He also prayed that the Court gives guidance on the proper interpretation as to who is "the original owner" of the property comprised in Asian Quarter under land title Vol. ECL XXI Folio 17, plot No. 6510 Division A. II 39. In the Applicant's view, it does not appear anywhere in the Judgment; neither in the reasoning nor in the operative part where the Court said "restore the property to the original owner". For that reason, he prayed for this Court to restore the accuracy of the facts, namely, that Judgement RPS 70 explicitly said that litigation "concerns transfer of a concession right" 40. Counsel added that it was in the interest of justice that this Court used its inherent powers and make such orders or give such directions as may be necessary for the ends of justice to be met or prevent abuse of court process. 41. The Applicant then prayed for the following orders; 1. that this Court guides on the proper interpretation of its Judgment and orders in Appeal No. 4 of 2022 arising from Reference No. 10 of 2018, ISAT Suri v. the Attorney General of the Republic of Burundi, delivered on 23 rd February 2023, as to who is "the original owner" of the property; ii. that the Judgment and orders of this Court in Appeal No. 4 of 2022 arising from Reference No. 10 of 2018, ISAT Suri v. The Attorney General of the Republic of Burundi, delivered on the 23 rd of February 2023 be reviewed and or wholly set aside. iii. that the Application be heard and determined as a matter of urgency; and iv. costs of the Application be provided for. Respondent's Case 42. The Respondent opposed the Application by an affidavit sworn by Hajayandi Gervais, the Permanent Secretary in the Ministry of Justice of the Republic of Burundi. 12 43. Counsel for the Respondent submitted that the Application did not qualify for review under Article 35 (3) of the Treaty and Rules 83 and 123 of the Rules, because an Applicant coming under those provisions needs to fulfil any or all the conditions specified therein. That in this case the Applicant in its notice of motion and written submissions had advanced the following 4 elements: (a) the contract l.B 12.774 between the State of Burundi and Mr. Ntisigana as a newly discovered document; (b) the certificate of title to the property comprised in the Asian Quarter under land title Vol. ECL XXI Folio 17, plot No, 6510 Division A. as a subsequently discovered document; (c) the reasoning of this Court stating that "the judgment RPS 70 annulled Certificate Vol. ECL XXI Folio 17 to restore the property to the original owner" as discovery of new evidence; and (d) the death of Mr. Ntisigana which occurred on March 11, 2016 as a newly discovered fact. 44. According to the Respondent's Counsel, all these were not new matters. 45. Counsel submitted that the mentioned documents namely, the contract LB 12.774 between the State of Burundi and Mr. Ntisigana and the certificate of title the property comprised in the Asian Quarter under land title Vol. ECL XXI Folio 17, plot No. 6510 Division A. were within the Applicant's knowledge or would have been discovered by exercising due diligence. 46. That, as averred by the Permanent Secretary in the Ministry of Justice of the Republic of Burundi in his affidavit in reply, the Applicant was re- "'k 13 opening the case that he lost before both the Trial Court and this Court . He was emphatic that the Applicant's arguments should not be allowed because to do so, would amount to a rehearing of the merits of the case. 47. On the contract LB 12.774 between the State of Burundi and Mr. Ntisigana being a newly discovered document, Counsel for the Respondent submitted that the arguments put forward by the Applicant were an attempt to show that he was not aware of the existence of the contract LB 12.774 entered into on 11 th October 1999 between the Republic of Burundi and Mr. Ntisigana, yet he admits in all his writings that the only contract to his knowledge was the contract LB 16.299 entered into on 17th January 2005 between the Republic of Burundi and the late Ntisigana. He pointed out that Article 1 of the said contract LB 16.299 provides that the contract L.B.12.774 was entered into on 11 th October 1999 and renewed for a term of one year starting on 14th January 2005. 48. Counsel wondered how a contract which the Applicant admits he knew of containing a renewal clause would remain unknown to him. Further, that the same contract L.B.16.299 specified that the said contract L.B.16.299 is renewed on the same terms and conditions as those listed in the contract L.B.12.774 of 1999. For those reasons, Counsel submitted that contract L.B.12.774 of 1999 was not a newly discovered fact. That, even then, such fact could not have had a decisive influence on the Judgment of the Court. 49. Counsel for the Respondent further submitted that, any person with minimum prudence and diligence would have sought to know about a contract cited in Article 1 of the contact in his possession which in this case was contract L.B 16.299. Article in the contract clearly stated that 14 it was renewed on the same terms and conditions as those listed in the contract L.B 12.774. The Respondent thus submitted that there was no new fact brought before this Court by the Applicant in compliance with Article 35(3) of the Treaty in so far as the contact L.B 12.774 presented by the Applicant as a discovered document contained the same terms and conditions that had been included in the contract L.B 16.299, which contract was in his possession. 50. Secondly, Counsel submitted that even if it was a discovered document, its nature would not have had a decisive influence on the Judgment rendered by this Court in Appeal No. 4 of 2022 arising from Reference No.10 of 2018. 51. Regarding the Certificate of the property comprised in the Asian Quarter under land title Vol. ECL XXI Folio 17, plot No. 6510 Division A. as a discovered document, the Respondent submitted that the Applicant's assertion that the certificate of title to the impugned property did not exist was flawed because he acknowledges in his pleadings and submissions that the certificate Vol. ECCCL XX Folio 34 was issued in the name of Mr. Ntisigana on 31 st January 2019. According to the Respondent, Certificate Vol. ECL XXI Folio 17 purported by the Applicant to be discovered evidence does not exist. Whal was in existence was Certificate Vol. ECL XXI Folio 17 which was annulled by the Courts. 52. Regarding the submission that the holding that, the Judgment RPS 70 annulled Certificate vol. ECL XXI Folio 17 to restore the property to the original owner as being a discovery of new evidence, the Respondent submitted that a Judge's reasoning cannot in any way be taken as evidence discovered by a party to the trial. 15 i1 , 53. On the death of Mr. Ntisigana which occurred on 11 th March 2016, as a newly discovered fact, the Respondent submitted that it was not a new fact or evidence in the mind of the Applicant but if it was, the Applicant could have discovered it easily by exercising due diligence. That the Applicant's claim to have discovered the death of Mr. Ntisigana was made without any demonstration as to how the death which occurred on 11 th March 2016 would have a link with contract LB 12.774 cited in Article 1 of the contract L.B 16.299, which was in the Applicant's possession. 54. Furthermore, that the Applicant was aware of the death of Mr. Ntisigana since a copy of the Minister's letter dated March 28, 2018 which was sent to the estate reserved for the Mr.Ntisigana Estate had come to the Applicant's knowledge as stated in the Reference. That by reading this letter the Applicant ought to have realized that Mr.Ntisigana had died. The Respondent further submitted that even if the death of Mr.Ntisigana had been known before the delivery of the Judgment, this could not have had any influence on the decision of the Court. 55. It was submitted for the Respondent that the arguments of the Applicant were intended to reopen the hearing of the case on its merits and what the Applicant was presenting constituted good grounds for an appeal and not for review. The respondent held the view that there was nothing in the present Application, which falls within the scope of Article 35(3) of the Treaty and rules 83 and 123 of the Rules. To him, the arguments advanced by the Applicant were just a re-introduction of the arguments made before the Trial Court and this Court, they were nothing but an attempt to appeal against the decision of the Court in Appeal No. 4 of 2022. 16 56. Counsel cited Independent Medical Legal Unit v. The Attorney General of the Republic of Kenya, Application No. 2 of 2012 arising from Appeal No. 1 of 2011, to demonstrate the distinction between a review and an appeal. 57. The Respondent thus submitted that in light of the above arguments and authorities this Court should not review its own Judgment in Appeal No. 4 of 2022 arising from Reference No.10 of 2018 because no discovery of new facts or evidence which would have a decisive influence on the Judgment, or mistake, or fraud, or error or injustice, had been demonstrated by the Applicant. Determination by the Court 58. We have carefully considered the Application and the submissions by learned Counsel for the parties on the issue of review which connotes judicial re-examination or reconsideration of the case or Judgment 59. The Applicant brought the Application under rules 4, 52(1), (2), (4), (5), (6), (?)(a) and (b), (8), 81, 82, 83,120,121 and 123 of the Rules and prayed for this Court to review, interpret, correct, clarify or set aside its own judgment dated 23'd February 2023 in Appeal No. 4 of 2022 arising from Reference No.10 of 2018. 60. Article 35(3) of the Treaty and rules 83(3) and 123 of the Rules provide for review of Judgment while interpretation is provided for under rules 82 and 122 of the Rules. We take it that the Application is essentially for review because interpretation concerns expounding or explaining the reasons for the Judgment, the object of which must be solely to obtain clarification of the meaning and the scope of the Court's decision. 17 61. We are inclined to follow the decision of the Supreme Court of India in Rupa Ashok Hurra v. Ashok Hurra Wint Petition (Civil) 509 of 1997 where the Court described the need for review in the following words: "Justice is a virtue which transcends all barriers. Neither the Rules of Procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. The rule of stare decisis is adhered to for consistency but is not inflexible in administrative law as in public Law. Even the law bends before justice ... " 62. Article 27 of the Treaty gives the Court jurisdiction to interpret and apply the Treaty, while Article 35(3) grants the Court specific jurisdiction to exercise powers of review. The Article provides as follows; " 35(3) An application for review of a judgment may be made to the court only if it is based upon the discovery of some fact which by its nature might have had a decisive influence on the judgment if it had been known to the Court at the time the judgment was given, but which fact, at that time, was unknown to both the Court and the party making the application, and which could not, with reasonable diligence , have been discovered by that party before the judgment was made, or on account of some mistake, fraud or error on the face of the record or because an injustice has been done." 63, The review jurisdiction granted to the Court in Article 35 of the Treaty is discretionary as can be discerned from rule 83(3) of the Rules which provides that; "the court shall grant an application for review only where the party making the application under sub rule (2) proves the allegation relied upon to the satisfaction of the Court" 18 Rule 123 thereof provides that:- " an application for review of a Judgment under Article 35 of the Treaty shall be mutatis mutandis in accordance with rule 83 of these Rules." 64. The Court has inherent powers to determine whether an error was clerical or legal. In Attorney General of Kenya v. Prof. Anyang' Nyong'o & 10 others, Appeal No. 4 of 2009, this Court held that it can exercise its jurisdiction appropriately in accordance with rule 83 of the Rules. 65. The considerations that guide the Court in an application for review under Article 35 of the Treaty and rule 83(3) of the Rules will depend on the facts and circumstances of each case, but the overriding consideration always being to do justice to the parties. 66. Several decisions of this Court have expounded on the power of the Court to review its decisions, bearing in mind that a court becomes functus officio and the matter becomes res judicata once a court delivers Judgment. This Court made it clear in the case of Independent Medico Legal Unit v. Attorney General of Kenya (supra) that the Appellate Division of this Court, just like the First Instance Division enjoys in appropriate cases the same authority and power to review its own Judgements because the power of review as set out in Article 35 (3) extends to both divisions of the Court. 67. The requirements and procedure for making the application are set out in Rule 83(1) and (2) of the Rules of Court which provide thus: "(1) An application for review of a judgment under Article 35 of the Treaty shall be made in accordance with this Rule. (2) A parly who from the discovery of new and imporlant matter or evidence which, after the exercise of due diligence was not within its knowledge or could not be produced by it at the time when the judgment was passed or the order made, or on account of some mistake, fraud or error apparent on the face of the record, or because an injustice has been done, desires to obtain a review of the judgment or order, may apply to the Courl for review of the judgment without unreasonable delay. (3) The Courl shall grant an application for review only where the parly making the application under sub (2) proves the allegations relied upon lo the satisfaction of the Courl. (4) When an application for review is granted, the Courl may rehear the case or make such other orders as it thinks fit. (5) Subject lo the parly's right of appeal, a decision made by the Courl on an application for review shall be final." 68. The law requires the party making the application for review to satisfy the Court that he has fulfilled any or all of the following conditions; he must demonstrate with evidence showing that he came across new evidence after the judgment had been delivered which might have had a decisive influence on the Judgment. He has to go further and show that such fact was not within his knowledge and that of the Court at the time of delivery of Judgment. That, such fact even with reasonable diligence, could not have been discovered by that party or the Court before the Judgment was made, or show that in the Judgment there is evidence of some mistake, fraud or error on the face of the record or that the Judgment has occasioned a miscarriage of justice. Review is therefore, justified only when circumstances of a substantial and compelling character make it essential to do so. 69. A successful application for review will result in rehearing the case in whole or in part, which may coincidentally be regarded as a continuation of the original trial but in the Court's Judgment, an application for review cannot be so regarded. If the Court finds that an error has been made while passing judgment due to some erroneous assumption that did not exist and its perpetration has resulted in a miscarriage of justice, then nothing will stop it from rectifying the mistake. 70. Courts, including this Court, have taken into account the following considerations when determining an application for review: 1. Review should not be an appeal in disguise whereby an erroneous decision is reheard and corrected. For that reason, it should only be available for a patent error. An error cannot be said to be apparent on the face of the record if it requires extensive search to find out or see if a judgment is correct or not. An error on the face of the record means an error which can be found at a glance and does not require a long process of reasoning on points where there may conceivably be two views. ii. The review jurisdiction of the Court cannot be exercised for the reason that the Judgment of the Court was erroneous on merit because the right course of action for such matter would then be to prefer of an Appeal. iii. Review cannot be sought merely for fresh hearing or correction of an erroneous view taken earlier. It is available where discovery of new and important information or evidence which, 21 after exercise of due diligence, was not within the knowledge of the affected party. iv. The purpose of review is not to provide a back door by which unsuccessful litigants can seek to re- argue their cases. Parties are not permitted to begin fresh litigation because of new views they may entertain of the law on the case or new versions which may present as to what should be a proper appreciation by the Court of the legal result, for if this is permitted, litigation would have no end except when legal ingenuity is exhausted. (See Independent Medico Legal Unit v. Attorney General of Republic of Kenya EACJ (supra) and Hoystead v. Commissioner of Taxation (LR [1926] A C 15 at 165). v. The appellate power of review should not be confused with appellate power which enables an appellate court to correct all errors committed by a lower court. If a view held by the court in original record is a possible one, it cannot be an error apparent on the face of the record even though a different view is also possible. 71. The need to meet the ends of justice makes it imperative that there should be a remedy in a case where there is an error or bias which has been established and that might justify the court to take the exceptional course of reopening proceedings which it had already heard and determined. It should however be clearly established that injustice had occurred or would probably occur and that, there was no alternative remedy. 72. An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature. It is therefore, left to be determined judicially on the facts of each case. There is a distinction between a mere erroneous decision 22 and an error apparent on the face of the record. Where an obvious error on a substantial point of law stares at one in the face, and there could reasonably be no two opinions, then, it can be said that there is an error apparent on the face of the record. An error which has to be established by a long- drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. A mere error or wrong view is certainly no ground for a review although it may be one for an appeal. See Christopher Mutikila v. Attorney General of Tanzania and Another (EACJ) Appeal No. 8 of 2007 73. In Independent Medico Legal Unit v. Attorney General of The Republic of Kenya (supra) the term "error apparent on the face of the record" was described as a term whose meaning has not been definitively settled. That it is a nebulous, fluid legal concept whose content must be interrogated in every case with a limited purpose and must not be allowed to form the basis of an appeal in disguise. It must therefore, be determined by the Courts sparingly and with great caution. The error apparent must be self-evident and not one that has to be detected by a process of reasoning. No error can be said to be an error apparent where one has to "travel beyond the record" to see the correctness of the Judgment. It must be an error that strikes one on merely looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. See Smti Meers Bhanja v. Smti Nirmada Kumari (Choudry) 1995 SC 455. 74. Regarding the Applicant's numerous challenges of this Court's analysis and basis by which it arrived at its findings and decision, the position is that if a view held by the Court in the original record is a possible one, then it cannot be an error apparent on the face of the record, even though another view such as the one now canvassed by the Applicant was also possible. 75. On the specific grounds of this Application, the Applicant submitted that contract LB 12.774 between the State of Burundi and Mr. Ntisigana was a newly discovered document which was neither in the knowledge of the Court nor that of the Applicant. He asserted that if the Court had known of this, it would have had great influence on the Judgment in Appeal No. 4 of 2022. That this formed a valid ground in support of his Application for review. We note that the Applicant states in Paragraph 2 at Page 21 of his written submissions that contract LB 12.774 was unknown to him but conversely, he at the same time admits to be aware of the contract LB 16.299 signed on 17th January 2005 which states in Article1 that "the contract LB.12.774 entered into 11 th October 1999, is renewed for a term of one year starting on 14th January 2005. 76. The arguments put foiward by the Applicant are in our view a flimsy attempt to bring his Application within the ambit of the law. We say so because of his admission that the only contract to his knowledge was contract LB 16.299. It is surprising that on one hand a contract which he admits he knew of containing a renewal clause which was to his knowledge, on the other hand remained unknown to him. Even then, it is our considered view that this alleged discovery could not have had a decisive influence on the Judgment of the Court in Appeal No. 4 of 2022. We believe that even if the Applicant did not know of the existence of contract LB. 12.774 which is not the case, he could have known of it had he been a little diligent by merely reading article 1 of 24 contract LB 16.299. We are therefore, not persuaded by this submission. 77. Our examination of the record brings us to the conclusion that all facts of the matters raised by the Applicant were in his knowledge and were brought to the attention of both the Trial Court and this Court. It is therefore, erroneous for the Applicant to deny his or the Court's knowledge. 78. The issue of ownership of the property was dealt with by this Court when it agreed with the decision of the Trial Court which held that, the Judgment RPS 70 annulled Certificate Volume ECL XX! Folio 17 to restore the ownership of the suit property to the original owner and along the same line, Judgment RAA 1172 bis cancelled all documentation to restore the same property to the original owner. Therefore, both decisions resulted in cancellation, So, in this respect, there is no contradiction as both Judgments resulted in cancellation. 79. Regarding the Certificate of the property comprised m the Asian Quarter under land title Vol. ECL XX! Folio 17, plot No. 6510 Division A as a newly discovered document, the Respondent submitted that the Applicant asserts in the penultimate paragraph of page 12 of its written submissions that the certificate of the property comprised in Asian Quarter under land title Vol. ECL XX! Folio 17, plot No. 6510 Division A did not exist, yet at the institution of the proceedings in Appeal No, 4 of 2022, Certificate Vol. ECL XX! Folio 17 issued in the name of the Applicant on April 1, 2005 was annulled by both Judgments RPS 70 and RAA 1172 bis. The Respondent submitted that the Certificate Vol. EGL XX! Folio 17 purported by the Applicant to be newly discovered evidence does not exist We have perused the record and find that what existed was Certificate Vol. ECL XX! Folio 17, which was annulled by the Courts. 80. The Applicant submitted that both the Trial Court and this Court erred when they held that "the Judgment RPS 70 annulled Certificate Vol. ECL XXI Folio 17 to restore the property to "the original owner'. That the Court committed an error when ii determined who the original owner was. Secondly that this was a new discovery which was neither in its knowledge nor that of the Trial and this Court. In Ariban Tu/eshwar v. Arban [1979] 45 CCL 389, the Supreme Court of India held that the power of review cannot be exercised merely because the decision was erroneous on merits for that is a province of the Court of Appeal. The Supreme Court went further to state that the power of review should not be confused with appellate power which may enable an appellate court lo correct all manner of errors committed by the subordinate court. We find this submission to be an argument on the merits of the substantive Appeal No. 4 of 2022 which this Court determined and is thus functus officio. 81. The Applicant also submitted that some errors are judicial errors which should not be visited on litigants. This argument lacks cogency because all errors complained of in an application for review originate from the Judgment so there cannot be judicial errors and other errors. The Rules do not make this distinction. Review of Judgment will not be considered except where a glaring omission or a patent mistake or grave error has crept into that Judgment through judicial fallibility. The Judge's reasoning and holding cannot in any way be taken as evidence which a party can claim to have discovered after delivery of Judgment. For the Court to agree to a review request based on commission of an error by itself, the error must be a patent, manifest and self- evident error which does not require elaborate discussion of evidence or argument to establish. In the present Application, the error complained of relates to alleged failure by this Court to make a distinction between two 26 judgments and yet to establish that a matter warrants review, you need not go beyond the record to establish the correctness of the Judgment. 82. We agree with the Respondent that the Applicant's submission that the Court's reasoning and holding that Judgment RPS 70 annulled Certificate Vol. EGL XXI Folio 17 to restore the property to the original owner cannot in any way be taken as new evidence discovered by a party to the trial. 83. We find that a review of the Judgment in Appeal No. 4 of 2022 as sought by the Applicant is not well founded under Article 35 of the Treaty because the Applicant is seeking for a different interpretation as to who is the "The original owner" of the property Registration Certificate Vol. ECCCLXX Folio 34 from the interpretation already made by the Court. This also applies to the submission that the State of Burundi did not follow the legal procedure in obtaining title to the property in issue. This can only be done by Appeal, where provided for. 84. To allow this application would be to open doors to all and sundry to challenge the correctness of the decision of this Court on the basis of arguments thought of long after the Judgment was delivered. There would be no finality to litigation. The only exception we can envisage is where an applicant has been wrongly deprived of the opportunity of presenting his argument on any particular point which might lead to the proceedings being held to be null and void, a consideration which is absent in this case. (See Lakhamshi Bros Ltd V. Raja & Sons [1966] EA 313). 85. The Applicant asserted that the death of Mr. Ntisigana was newly discovered evidence which was neither in his knowledge nor that of the Court at the time the Judgment in Appeal No. 4 of 2022 was rendered. That had this evidence been known then, it would have influenced this Court to arrive at a different conclusion. According to him, it was discovered that Mr. Ntisigana died on the 11 th March 2016 before the proceedings in this Court in Appeal No. 4 of 2022 arising from Reference No. 10 of 2018, ISAT Suri v. The Attorney General of the Republic of Burundi were concluded. In his view, this was new evidence which justified review of the Judgment. We are not persuaded by this assertion because we believe that, if the Applicant had exercised due diligence, he could have discovered the death during the pendency of the proceedings in Court and brought it to the attention of the Court. 86. Secondly, the letter of the Minister of Justice dated 281h March, 2018 rejecting the Applicant's request was copied to the successors of Mr. Ntisigana including the Applicant as shown in the statement of Reference No. 10 of 2018. By reading this letter the Applicant ought to have realized that Mr. Ntisigana had died. To allow an application for revrew, the applicant must provide sufficient evidence of diligence in getting all the evidence available. (See Bancroft & Anor v. City Council of Nairobi [1971] 1 EA 151). 87. Even if the death of Mr. Ntisigana had been known to the Court before the delivery of the Judgment, this in our view could not have influenced the Court to decide otherwise. Caution has to be taken in exercising the discretion of review because the Court is already functus officio. It is therefore, important for the Court to satisfy itself that it acted without basis in law and fact or both with the result that there was a denial of justice under the law and that there is a reversible error resulting, for example, from mistaken exercise of discretion. We do not see any of these follies in the Judgment of the Court being challenged by the Applicant. 88. We find that the matters raised in the Application go beyond the face of the record and therefore, outside the scope of review because the 28 Applicant raises a substantive challenge of the merits of the Court's Judgment on the issue of land registration and ownership in the Republic of Burundi. 89. From decided cases, the Court has declined to allow review of its judgment for various reasons, for example, in Independent Medico Legal Unit v. Attorney General of Kenya (supra), the Court declined the application for review on the reason that if a view held by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view such as the ones canvassed by the Applicant was also possible. The grounds presented by the Applicant for this Court to review its Judgment could be good grounds for a further appeal but this is not provided for in Article 35 of the Treaty. 90. Taking all the above into account and in particular the circumstances of this Application, we are satisfied that the Application for review is not merited and we accordingly disallow the same. REMEDIES 91. Having found that the Application is devoid of merit, the Applicant is not entitled to the remedies prayed for. 92. Both parties sought to be awarded costs of the Application. Rule 127(1) of the Rules provides that costs in any proceedings shall follow the event, unless the Court shall for good reasons otherwise order. This means that a successful party is to be paid costs by the losing party. In this court, award of costs is at the discretion of the Court if a party is able to advance good reasons bearing in mind the principle that a successful party may only be deprived of costs on exceptional 29 circumstances; See Margaret Zziwa v. Secretary General of EAC Appeal No. 2 of 2017. 93. We see no good reasons in the present Application to depart from the provisions of Rule 127 of the Rules. We therefore award costs of the Application to the Respondent. DISPOSITION The upshot of our consideration of the Applicant's Application is that:- a. the Application is dismissed; and b. the Applicant shall bear the costs of the Application. IT IS SO ORDERED DATED, DELIVERED, AND SIGNED in Kigali Rwanda on this 3rd day of March 2025. . . .. . . . . ... ..i . ... .· ·· · · · Anita Mugeni VICE PRESIDENT Kathuri a M'lnoti JUSTICE F APPEAL ~ . ~ L "r ,, f .4tr9-~ t .. .......~.......................~ ................ . A ..... Barishaki Cheborion JUSTICE OF APPEAL 30