xavier v attorney general of republic of rwanda appeal no8 of 2022 2025 eacj 7 28 february 2025

IN THE EAST AFRICAN COURT OF JUSTICE AT KIGALI, RWANDA APPELATE DIVISION (Coram: Nestor Kayobera, P; Anita Mugeni, VP; Kathurima M'lnoti; Cheborion Barishaki and Omar Othman Makungu, JJ.A.) APPEAL NO 8. OF 2022 BETWEEN MIRON KO FRANCOIS XAVIER ..................................... APPELLANT AND THE ATTORNEY GENERAL OF THE REPUBLIC OF RWANDA ..................._••··-·••uu••u u ...... RESEONDENT [Appeal from the Judgment of the First Instance Division ("The Trial Court") at Arusha (Yohane Masara, PJ; Audace Ngiye, DPJ; Charles Nyachae; Richard Muhumuza and Richard Wejuli, JJ.) dated 6th April, 2022 in Reference No. 11 of 2018] 1 JUDGMENT OF THE COURT INTRODUCTION. 1. MIRONKO Francois Xavier ("the Appellant") has preferred this Appeal against the Judgment of the Trial Court dated 5th April 2022 in Reference No. 11 of 2018. In the said Judgment, the Trial Court dismissed the Reference but directed each party to bear its own costs. 2. The Appellant is resident at Amajyambere Village, Kimihurura Cell, Kimihurura Sector, Gasabo District in the Republic of Rwanda, with his registered office in Nyarugenge District, Kigali City, in the Republic of Rwanda. In this Appeal, the Appellant is represented by Mr. Joel Kimutai Bosek, Advocate and Ms. Claire Namakangala Kituyi, Advocate. 3. The Respondent is the Attorney General of the Republic of Rwanda, a State Party to the Treaty for the Establishment of the East African Community ("the Treaty") and is represented in this Appeal by Mr. Emile Ntwali, Principal State Attorney and Mr. Nicholas Ntarugera, Senior State Attorney. BACKGROUND 4. On 5th April 2022, the Trial Court dismissed the Appellant's Reference for having been filed out of time in terms of Article 30(2) of the Treaty. 5. The Appellant was aggrieved by the judgment and lodged a Notice of Appeal on 5th May 2022 within the period of thirty (30) days prescribed by Rule 88(2) of the East African Court of Justice Rules of Procedure, 2019 ("the Rules"), and served the Notice of Appeal upon the Respondent on 10th May 2022, within the fourteen (14) days prescribed by Rule 89 of the Rules. 2 REFERENCE TO THE TRIAL COURT. 6. On 4th June 2018, the Appellant filed Reference No. 11 of 2018 in the Trial Court against the Respondent under Articles 6(a), 9, 23, 27 and 30 of the Treaty, Articles 2 and 60 of the African Charter on Human and Peoples' Rights and Rules 8(1 )-(6), 21 (1 )(2)&(3) of the East African Court of Justice Rules of Procedure, 2013, alleging violation by the Respondent of her obligations under the Treaty, specifically Articles 6(d) and 7(2) thereof. However, the Respondent denied the violation of the Treaty alleged in the Reference. 7. It was the Appellant's case that sometime in 1993 and 1994, through a public tendering process, he was awarded a tender by the Respondent to supply various military equipment, which he did supply, but due to the confidential character of the procurement, the urgency of the tender and from exceptional circumstances that the Country was experiencing, the tender was awarded on mutual agreement between both parties as provided by the law. The Appellant claimed that following certain payments made by the Respondent, there remained an unpaid balance, in respect of the delivered goods amounting to BF 7,100,000 (Seven Million, One Hundred Thousand Belgian Francs). 8. The Appellant unsuccessfully lodged a number of cases in various - - Courts of Judicature of the Respondent up to the Supreme Court, which, on 6th April 2017, declined to entertain a review on the basis that the new evidence alleged by the Appellant did not meet the threshold to justify a review in accordance with the applicable law of the Respondent. 3 9. Further, the Appellant approached the Ombudsman- r-equesti11g for a review of the Supreme Court's decision on the basis of an injustice caused to him, but the Ombudsman declined to grant such a request, through his decision delivered on 24 th April 2018. 10. Thereafter, the Appellant filed Reference No. 11 of 2018 in the Trial ! Court against the Respondent seeking the following reliefs: a) a declaration that the Government of Rwanda violated Articles 6(d) and 7(2) of the Treaty, its national laws, international conventions as well as the general principles of law; b) a declaration that the Government of Rwanda committed injustice against him (the Appellant); c) an order that the Government of Rwanda re-establishes the Appellant in his rights; and d) any other reliefs as this Honorable Court may deem just to · grant. 11. The Respondent denied all the allegations made by the Appellant, arguing that the Appellant having chosen to approach the courts of Rwanda, the judicial system provided him a fair and just process, but was not able to prove his claims. The Respondent further argued that the Appellant approached this Court on a disguised appeal as a Reference, and that the Reference was not a case for interpretation or application of the Treaty, but an invitation to this Court to sit in an Appellate capacity over the decision of Rwanda's Supreme Court and that of the Ombudsman. 12. The Respondent further contended that the Reference was, in any event, time barred and could not be entertained by this Court, in exercise of its jurisdiction under the Treaty and that, the Reference did 4 not disclose any- cause of action. T-he Responde11t- prayeci the l=rial Court to dismiss the Reference with costs. THE SCHEDULING CONFERENCE, HEARING OF THE REFERENCE AND DECISION OF THE TRIAL COURT 13. At the Scheduling Conference held by video link on 3rd July 2020 before the Trial Court, the following issues were framed for determination, namely: a. whether the Reference is time barred; b. whether this Court has jurisdiction to entertain the Reference; ' c. whether the acts complained of by the Applicant constitute a violation of Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community; and d. whether the parties are entitled to the remedies sought. 14. After hearing the parties, all the evidence adduced, and upon considering the relevant jurisprudence, the Trial Court, by its judgment dated 6th April 2018, which is impugned in this appeal, held that it lacked jurisdiction ratione personae/locus standi and jurisdiction ratione materiae to entertain the Reference and also that the Reference, having been field out of time in terms of Article 30(2) of the Treaty, the Court lacks jurisdiction ratione temporis to hear and determine the same. 15. Accordingly, having found that it did not have jurisdiction in the matter, the Trial Court downed its tools and declined to determine any other issues. The ultimate result was, as we have already pointed out, that the Trial Court dismissed the Reference but directed each party to bear its own costs. 5 THE APPEAL 16. The Appellant was aggrieved by the Judgment of the Trial Court and lodged a Notice of Appeal on 5th May 2022, followed by a Record of Appeal dated 9th June 2022. 17. The Appellant raised a multitude of grounds of Appeal, fourteen (14) in number in its Memorandum of Appeal which we deem necessary to reproduce herein verbatim, namely: · i. the Honorable Judges of the First Instance Division erred in law and fact in dismissing the Reference without considering and determining the issues in the Reference on merit; ii. the Honorable Judges of the First Instance Division erred in Law and fact in interpreting of the limitation of time to bring this Reference and holding that the Reference was time barred whereas the cause of action accrued within the time of lodging the Reference; iii. the Honorable Judges of the First Instance Division erred in law and in fact in abdicating jurisdiction and being reluctant to fault the national courts in dismissing an application for review at the Supreme Court of Rwanda without considering the application on its merits hence denying the Appellant access to iv. the Honorable Judges of the First Instance Division erred in law in finding that jurisdiction of judicial review should draw a distinction between organs of state. The Treaty does not distinguish organs of state and does not separate whether they are judicial or non-judicial; v. the Honorable Judges of the First Instance Division erred in law in failing to appreciate that jurisdiction extended to 6 questioning the judicial decisions of national (municipal)-courts and that such courts are as per the Treaty regarded as organs of state; vi. the Honorable Judges of the First Instance Division erred in law in not appreciating a very basic principle of the rule of law in considering the manner in which proceedings were carried outin the municipal courts and whether they complied with the standards of rule of law envisaged by the Treaty; vii. the Honorable Judges of the First Instance Division erred in law and fact in failing to appreciate the legal provisions that allow for consideration of new evidence by trial courts, if such evidence has come to the knowledge of the court and has a bearing on the direction that the court would take in a matter for a just determination of the case; viii. the Honorable Judges of the First Instance Division erred in law and in fact by failing to consider the entirety of the evidence tendered by the Appellant in the trial courts as proof of supply of military equipment to the state and instead requiring the Appellant to provide other evidence which is not part of the Appellant's bundle of documents; ix. the Honorable Judges of the First Instance Division erred in law and fact in ignoring the express provisions of the Rwandan law on aam1ss1on of new evidence; x. the Honorable Judges of the First Instance Division erred in law in failing to appreciate that the Appellant was denied the right to due processes of law in that; (a) the Court disregarded and denied evidence which was produced by the Appellant in the course of trial; (b) the evidence produced by the Appellant during trial was not controverted by the Respondent during cross 7 examination or in the defense ca~e yet the Court upheld the Appeal by the Higher Courts; (c) the Supreme Court and the Ombudsman denied the Appellant the right of review of the decision by the Supreme Court; xi. the Honorable Judges of the First Instance Division erred in law and fact in not finding that the Trial Court was clearly biased against the Appellant's submissions and protestations and failed to allow his (sic) mind to be guided by the principles of fairness and due processes of law; xii. the Honorable Judges of the First Instance Division failed to appreciate the validity and veracity of evidence which clearly favored the Appellant herein; xiii. the Honorable Judges of the First Instance Division erred in law in not finding that the Respondent herein had failed to act in accordance with the principles of good governance, including adherence to the principles of rule of law and maintenance of universally accepted standards of human rights; xiv. the Honorable Judges of the First Instance Division erred in law in not finding that the claim for special damages had not been controverted and/or contradicted by the Respondent and heAee the .~ppellant ACreirt was entitled_te the same. 18. The Appellant also prayed that the Court grant the following orders: i. the judgment entered by the Honorable Judges of the First Instance Division on 6th April, 2018 be and is hereby set aside; 8 ii. a decJaration that th_e dismissal of the Appellant's case without looking at its merit contravened the provisions of Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community; iii. a declaration that refusal to entertain the Application for review violated the provisions of Articles 6(d) and 7(2) of the EAC Treaty, particularly on the rule of law; iv. a declaration that the Appellant is entitled to his claim as per the decision of the Honorable Judges of the First Instance Division that awarded him as claimed; v. a declaration that the Appellant is entitled to damages; and vi. costs of this Appeal and of the reference in the First Instance Division be awarded to the Appellant. 19. On 12th August 2022, the Respondent filed Application No. 12 of 2022 seeking to strike out the Appellant's Notice of Appeal on the ground that the Appellant had failed to take essential steps within the prescribed time. 20. At the Scheduling Conference for the Appeal held on 15th August 2022, . the parties agreed on three issues for determination by the Court, with issue No.1 being whether the Appellant's Appeal was properly before the Court, and on that basis, the Respondent withdrew its a~~lication to strike out the Appellant's Notice of Appeal. 21. When the Appeal was called up for hearing on 23 rd November 2022, in Kampala, the Republic of Uganda, the Appellant applied informally for extension of time to deem the Appeal as filed within time. The Court drew the Appellant's attention to the fact that under rule 94 of the Rules, the kind of application he was contemplating must be made formally, at 9 which point the Appellant successfully applied for an adjournment to consider his position. 22. Subsequently, on 7th December 2022, the Appellant filed Application No.15 of 2022 for extension of time and to deem Appeal No. 8 of 2022 as filed on time. That application was heard and allowed vide a Ruling of this Court dated 27th February 2023. The Court deemed the Record of Appeal filed on 9th June 2022 to have been filed on time. That Ruling effectively disposed of the first issue in the appeal, namely whether the Appeal was properly before the Court. BACK TO THE APPEAL 23. This Appeal came up for hearing on 23 rd February 2024 for the parties to submit on the only two remaining issues: (1) whether the Honorable Judges of the First Instance Division erred in law by determining that the Court lacked jurisdiction to entertain the Reference; and (2) whether the parties are entitled to the remedies sought. SUBMISSIONS BY THE PARTIES ON THE ISSUES ISSUE NO. 1: Whether the First Instance Division erred in law b}' --Holdin-g that the ·Appellant's Reference- No. s-of 2022 was time-barred. THE APPELLANT'S SUBMISSIONS. 24. Before making his submissions on the issues as framed by the parties with the assistance of the Court, Counsel for the Appellant made a summary of the background of the Appeal which we find no reason to 10 reproduce here because it is a repetition of_wha_t is G_ontaine_d in th_e Memorandum of Appeal. 25. On the issue as to whether the Trial Court erred in law by determining that the Court lacked jurisdiction to entertain the Reference, Counsel gave a factual background to his grievances that emanate from a tendering process which was awarded to two of the Appellant's companies: (i) The International Industries S.A, based in Belgium and; (ii) Mironko Eurafric SPRL, based in Luxembourg. Surprisingly, the Appellant does not indicate, in this factual background, when the tender was entered into. 26. It was argued by Counsel that the Appellant lodged a number of cases and/or complaints in various organs of the Respondent, from the Commercial Court of Nyarugenge, to the Commercial High Court up to the Supreme Court where its case was dismissed. He made a further appeal for review in the Supreme Court and the same was declined. We note also that even for this chronology of cases in the courts of judicature of the Respondent, the Appellant does not indicate which years, months or dates those cases were filed or decided by the courts of law. He further submitted that after all his complaints/cases were dismissed u to the Su reme Court, he a roached the Ombudsman - -- - - - - - - - - ---- who on 24 th April 2018, declined to entertain the request that the Supreme Court do review his case on fresh evidence. It was argued that the particular action of the Ombudsman not to even entertain his request to have the matter reviewed brought him to the full awareness of the fact that the State's organs, namely the courts and the Ombudsman were bent of frustrating his claim with a view of refusing to pay him what they owed him. 11 27. Counsel submitted that following the refusal of the courts and- the Ombudsman to pay what they owed him, the Appellant proceeded to file the Reference for the Court to determine whether the Respondent's action of refusing to honour an obligation it owed to him was in line with the provisions of the Treaty on the principles of good governance. Counsel argued in paragraph 15 of his submissions that as far as the main issue of claim of debt is concerned, the issue of limitation of time does not arise. In the same paragraph, the Appellant submitted that in any event, the Treaty does not have jurisdiction to entertain the matter of a debt owed to an individual and was thus not within the ambit of the Court. That however, the general conduct of the Respondent as regards the issue of the debt owed to the Appellant and the processes involved revealed another cause of action which fell within the scope and jurisdiction of this Court, that is, lack of good governance on the part of a state that does not honor an obligation owed to its subject; and that this culminated in the blatant and deliberate refusal of the Ombudsman to entertain a meritorious application for review, displaying a blatant disregard for the claim by the Appellant, which occasioned a cause of action to accrue. 28. Counsel submitted further that the statute of limitation follows the maxim "equity does not aid the indolenf', which is a weapon used to too late in the day. He cited Gathoni v. Kenya Co-operative Cremaries Ltd [1982] KLR 104, where Potter, JA stated the rationale of the Law of limitation as follows:- "the law of limitation of actions is intended to protect defendants against unreasonable delay in bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest." 12 That further, in Rawal v. Rawal [1990] KLR 275, the Court held as follows:- "the object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand and on the other hand protect a defendant after he had Jost evidence for his defense from being disturbed after a Jong lapse of time." 29. It was Counsel's further submissions that the Appellant could not be said to have been indolent taking into account the several efforts he made to achieve the elusive justice that he was denied by the Respondent's organs, first by filing his claim in the Commercial Court at Nyarugenge and the subsequent appeals up to the Supreme Court which in essence means the matter was under active litigation and not redundant. He further submitted that the Reference before the Trial Court was lodged on 4th June 2018 before the expiry of two months after the decision of the Ombudsman delivered on 24th April 2018. 30. In paragraph 21 of his written submissions, the Appellant argues that this Court has jurisdiction to review the actions of all organs of state which might come in form of decisions, directives or orders and that the jurisdiction of this Court covers both judicial and other state organs. He further submitted that the Trial Court did not pronounce itself on how all the State's organs entertained this matter but gave only emphasize on ______ _tb~ _d_gctrjne of j_uri~gjct!on catioqf! tempocis a_n~j_ sbut CL!t _aJI _gt!;)er equally critical issues. The Appellant's assertion is that his claim is not for the debt owed but for the breach of the principles of good governance by the Respondent to honor its obligation to him compounded upon receiving the letter from the Ombudsman rejecting his request. 31. It was Counsel's argument that the starting date is in relation to the act or decision taken to appeal the decision of the Commercial Court, the 13 ~ Reference filed on 16th June 2018 is ostensibly outside the 60 days' limitation in which to file a reference; that however, it is his submission that the starting date in the Reference is the date when the Ombudsman summarily declined to address his application for review and when the decision of the Ombudsman was communicated to him. The Appellant submits in paragraph 30(vi) that the Trial Court ignored the series of decisions by a number of organs of the Respondent (a) the Commercial Court at Nyarugenge, (b) the Supreme Court and (c) the Ombudsman as decisions that this Court has jurisdiction to review. 32. Counsel relied on the decision in Martha Wangari Karua v. Attorney General of the Republic of Kenya, Reference No. 20 of 2019, wherein the Trial Court quoted with approval the decision in East African Civil Society Organization Forum (EACSOF) v. the Attorney General of the Republic of Burundi and Others, Reference No. 2 of 2015 in the following terms: - "the Reference before the Trial Court was not a further appeal from the decision of the Constitutional Court of Burundi. It was a Reference on the Republic of Burundi's international responsibility under international law and the EAC Treaty attributable to it by reason of an action of one of its organs namely the Constitutional Court of Burundi. The Trial Court had a duty to determine this international responsibility and in so doing, it had a further duty to consider the internal laws of the Partner State and apply its own appreciation thereof to the provisions of the Treaty." 33. Finally, on this issue of time limitation, Counsel submitted that the grounds relating to dismissal of the Reference on the basis of lack of jurisdiction temporis does not hold. 14 34. Counsel made long submissions on the Respondent owing the Appellant liabilities, but we find no meaningful reason at this juncture to spend a minute of time or reproducing a single word of the submissions thereof because that was not identified as an issue for determination in the Scheduling Conference or at any time during the proceedings of this Appeal. RESPONDENT'S SUBMISSIONS 35. Before submitting on the issue as to whether the Trial Court erred in law in dismissing the Reference for being time-barred, Counsel for the Respondent made long submissions that this Appeal is not properly before this Court. Counsel argued that it appeared from the Appellant's Memorandum of Appeal that his sole preoccupation was to have the Appellate Division rehear and determine afresh, the questions of facts and law examined by the Trial Court in Reference No. 8 of 2018. However, this is a matter to be discovered by the Court after analyzing the whole proceedings and submissions by the parties on the very issue on lack of jurisdiction as framed by the parties and as provided for under Article 35 A of the Treaty. 36. Coming back to the main issue as to whether the Trial Court erred in law in dismissing the Reference for lack of jurisdiction ratione temporis, _. t9e _B@seo_nfie?t _made sgo_rt_-=8nd brief s1Jhrois.15ions _tb_~t the I£!<!!_<;quct _ correctly decided that the Reference was filed well beyond the time limit set out in Article 30 (2) of the Treaty, and that the Appellant was irredeemably out of time and as a result, the Court lacked jurisdiction ratione temporis to hear and determine the Reference. It was Counsel's further contention that the Trial Court did not violate any provision of the Treaty or the Rules by dismissing the Reference without determining the issues therein on merit, given that the Reference was time-barred. 15 37. The Respondent therefore, prayed that the Appeal should be dismissed with costs. APPELLANT'S REPLY TO THE RESPONDENT'S SUBMISSIONS 38. Counsel argued that it is true that in the Scheduling Conference held on 15th August 2022, the first issue was "whether this appeal is properly before the Court", but the central issue in the Appeal is the question of whether the Court erred in determining that it lacked jurisdiction temporis to determine the Appeal. 39. It was further argued that, with the issue of jurisdiction being the central issue of determination, it is quite apparent that the Appeal meets the condition for an appeal both under the Treaty and the Rules; and that the Respondent in his submissions has not demonstrated otherwise. Counsel strongly contended further that it is noteworthy that the Respondent has extensively submitted on the threshold for an appeal tackling procedural irregularity and error or mistake when the appeal basically lies on the question of jurisdiction. THE COURT'S DETERMINATION OF THE FIRST ISSUE 40. Before we tackle the very issue before us as to whether the Trial Court erred in law in dismissing Reference No.11 of 2018 for having been filed out of time· contrary to the provisions of Article 30(2) ·of the Treaty, we think it is imperative to say a word on the argument by Counsel FOR the Respondent that this Appeal is not properly before the Court. In essence, appeals to this Court are governed by the provisions of Article 35A of the Treaty which provides that: "an appeal from the judgment or any order of the Trial Court shall lie to the Appellate Division on: 16 (a) point of law; (b) grounds of lack of jurisdiction; or [Emphasis added] (c) procedural irregularity." 41. In Simon Peter Ochieng and Others v. Attorney General of the Republic of Uganda, EACJ Appeal No. 5 of 2015 where the Court in its judgment analyzed the question of the propriety of an appeal for determination before it, it was held that the Appellant must establish either a point of law, lack of jurisdiction or procedural irregularity. [Emphasis added] 42. The central issue before us, therefore, as has been clearly underlined and argued by Counsel for the Appellant in their written and oral submissions, is whether the Trial Court erred in law in determining and holding that it lacked jurisdiction ratione temporis over the Reference for having been filed out of the two months provided for under Article 30(2) of the Treaty. For avoidance of doubt, we deem it necessary to reproduce Article 30(2), which provides as follows: "the proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be." arguments from the parties, the central issue before us at this juncture is an issue that relates to "lack of jurisdiction" of the Trial Court, which is a ground of appeal under Article 35 A of the Treaty and rule 86 of the Rules and as explained in Simon Peter Ochieng and Others v. Attorney General of the Republic of Uganda (supra). The issue of procedural irregularity that has been invoked at length by Counsel for the Respondent in their written submissions and oral submissions is not 17 relevant, especially after the Ruling of this Court rendered and delivered on 27th February 2023 in Application No.15 of 2022. At paragraphs 30 and 31 of the Ruling, this Court held that: "... we are accordingly satisfied that at this stage, we cannot say that the Applicant's appeal is not arguable. Taking all the above into account and in particular the circumstances of this Appeal, we are satisfied that the Applicant's application for extension of time is merited, and we accordingly allow the same and deem the Record of Appeal dated 9th June 2022 filed on time." 44. With due respect to Counsel for the Respondent, the central issue before us is whether the Trial Court erred in law in holding that it lacked jurisdiction ratione temporis to hear the Reference which, according to the Court, and supported by Counsel for the Respondent, was filed out of the time of two (2) months provided for under Article 30(2) of the Treaty. It is also upon the Appellant to prove how the Trial Court made the error as contended by Counsel for the Appellant. We make reference to Simon Peter Ochieng (supra) at paragraph 29 which reiterated that he who alleges must prove. In that regard, a party alleging whatever error must explain what the alleged error is and how it leads to miscarriage of justice. Equally, in the instant Appeal, it is up to the Appellant who is alleging an error of law eeeasior,eeJ by tne ~Fial 6 et:Jft to ider,tify, establisl't and explain - the alleged error of law and how it invalidates the impugned decision. 45. This Court, being the Court of final resort, has reiterated in its judgments, that the East African Court of Justice is an International Court established by the Treaty (Article 9) and the Judicial Body of the Community mandated to ensure adherence to the law in the interpretation and application of and compliance with the Treaty (Article 18 23) and whoever appears before it or submits before it needs and must understand the nature and character of the Court. Also, from the provision of Article 35A of the Treaty and rule 86 of the Rules, litigants need to understand that this Court is not a Court of Appeal over judgments and/decisions of national judiciaries, unlike to the defunct East African Court of Appeal. In determining the first issue, it is necessary to recall the history of the litigation in the Respondent leading to the Reference. 46. Back in 1993 and 1994, through a public tendering process, the Appellant was awarded a tender by the Respondent State to supply various military equipment. The Appellant filed a number of complains in the Court of Judicature of the Respondent from the Commercial Court up to the Supreme Court and the latter declined to entertain a review and its final decision was delivered on 6th April 2017 as per paragraph 16 of the impugned Judgment of the Trial Court. 47. The Appellant approached the Ombudsman requesting for a review of the decision of the Supreme Court and the request was declined by the Ombudsman by his letter delivered on 24th April 2018 as per paragraph 17 of the impugned Judgment of the Trial Court. 48. Now, it is the imperative function of this Court to find out what action/omission the Appellant has complained of as constituting violation of the Treaty and therefore justiciable before the Court in implementing the provision of Article 23(1) of the Treaty. In Democratic Party v. the Secretary General of the EAC and Others, EACJ Reference No. 20 of 2012, this Court held that:- "once a party has invoked certain relevant provisions of the Treaty and alleges infringement thereof, it is incumbent upon the Court to 19 seize the matter and entertain its jurisdiction under Articles 23, 27 and 30 to determine whether the claim has merit or not." This of course, is done subject to the provisions of Article 30(2) on time limitation which is the issue under analysis here. 49. From the pleadings of the parties in the national judiciaries of the Respondent, starting from the Commercial Court in Nyarugenge to the Supreme Court, which is the highest Court of Judicature of the Respondent, the Appellant's claim related to failure by the Respondent to pay him a debt, ostensibly arising from the supply of military equipment in 1993 and 1994. The final Judgment by the Supreme Court was delivered on 6th April 2017. It seems that after the Appellant failed to get the claimed debt from the Judicial system of the Respondent, he approached the Ombudsman who also declined, by the letter dated 24th April 2018, the request for review of the decision of the Supreme Court. It was after the Appellant was notified of the decision of the Ombudsman that he filed, on 4th June 2018, Reference No.11 of 2018. 50. The question that the Court should ask is whether from the pleadings, the Appellant was really aggrieved by the decision/omission of the Ombudsman of 24 th April 2018 or the failure of the Respondent's organs/institutions to order payment of his claimed debt. This Court has been very careful when it is called upon to interpret the provision of Article 30(2) of the Treaty on the time required to access the Court in order to avoid legal uncertainty and confusion, not only to the actual and future litigants, but also to the Partner States, to the Organs and Institutions of the EAC and most importantly, to the implementation of the agenda of the Community. 20 51 . For instance, in Mbugua Mureithi Wa Nyambura v. Attorney General of the Republic of Kenya, EACJ Reference No. 11 of 2011, this Court held that: "the General Rule of Interpretation set out by the Vienna Convention on the Law of Treaties. .. is applicable to the interpretation of this Article. It is our understanding from the plain reading of Article 30(2) that a Reference challenging any unlawfulness or infringement provided for under Article 30(1) must be instituted within a period of two months of their occurrence or in the absence thereof, when the complainant came to know the act or action complained of. This is the clear and ordinary meaning to be given to Article 30(2)." 52. This Court also observed in Attorney General of the Republic of Uganda and the Attorney General of the Republic of Kenya v. Omar Awadh and 6 Others, EACJ Appeal No. 2 of 2012 as follows: "the Court is still of the same view: that the objective of Article 30(2) is legal certainty. It still notes that the purpose of this amended provision of the Treaty was to secure and uphold the principle of legal certainty; which requires a complainant to lodge a Reference in the East African Court of Justice within the relatively brief time of only two months. Nowhere does the Treaty p1ovicle fut -any "exception " to tt1e two montf1 's peliofl. -The1ei11 fies the critical difference between the EAC Treaty (which governs trade matters as the objective of cooperation between the Partner States) on the one hand; and, on the other hand, Human Rights Conventions and Treaties which provide "exceptions" (for continuing violations) on the grounds that securing the fundamental rights of the citizens is of paramount essence. For this reason, the Judicial Bodies that have human rights jurisdiction 21 must strenuously uphold and protect all such rights through a liberal and purposive interpretation". The Court also held that: "It is clear that both the context and intent of Article 30(2) provides a legal framework for determining the starting date of an act complained of, or alternatively the date on which the complainant first acquired the requisite knowledge - all with the objective of ascertaining the commencement and expiry of "the time of the two months." In that spirit, the Article does not contemplate the concept of "continuing" breach or violation, in as much as the acts complained of, or the time when a claimant had knowledge of the breach of infringement, have definitive starting date and expiry within the two-month period. The only "continuing" period envisaged under the Article is the grace period (implicitly allowed under the second limb of that Article) for the complainant to have knowledge of the act. From the date of such knowledge, the legal clock for the two-month period starts to tick. 53. An important follow up question here is: (a)which date did the legal clock for the two-month period start to tick as regard to the filing of the Reference in the Trial Court? (b) was it after the Appellant received the letter from the Ombudsman or after he became aware of the Respondent's failure to pay him his claimed debt, long before the filing of the Reference? 54. The only answer to the two similar questions is that the legal clock started to tick for a period of not more than two months provided for under Article 30(2) of the Treaty when the Appellant became aware that the Respondent was unwilling to pay him his claimed debt, following the decisions from the Commercial Court up to the Supreme Court on 6th April 2017 and this was long before the Ombudsman's letter of 4th June 2018. 22 55. Counsel for the Appellant tried to underline in paragraph 24 of their written submissions that the Appellant's assertion is that his claim is not for the debt owed but for the breach of the principles of good governance by the State to honor its obligation to him compounded upon receiving the letter from the Ombudsman rejecting his request. However, Counsel for the Appellant in paragraph 35 of their written submissions stated that the Appellant properly seized jurisdiction of this Honorable Court by lodging a Reference against the decisions of the Respondent's organs, Ombudsman included. [Emphasis added] 56. From the Appellant's own assertion, his grievances are clearly not caused by the Ombudsman's action/omission only, but also by other organs of State; the Ombudsman only included to those other State organs that failed to pay him his claimed debt, following alleged supplies of military equipment way back in the years 1993 and 1994. This is also corroborated from the Appellant's own arguments in paragraph 36 of his written submissions, that the failure by the Respondent to pay full amount for goods supplied by him was in violation of Articles 6(d) and 7(2) of the Treaty. 57. Counsel further argued, in paragraph 38, that nonpayment on the part of the Republic of Rwanda, rather than the letter of the Ombudsman, deniedJ hc Appellant his-ri~hltt:tl camings. lri Aleen International ttd v. Standard Chartered Bank of Uganda & 2 Others, EACJ Appeal No. 3 of 2013, the Court reiterated that under the Treaty, a Reference must be filed within two months of the crystallization of the cause of action or knowledge by the Claimant of the existence of the cause of action. 58. From the foregoing, we are not persuaded that Reference was filed within the prescribed period of two months provided for under Article 23 30(2) of the Treaty. The cause of action in the Reference arose, not following the letter of the Ombudsman, but after the decisions of the national judiciaries of the Respondent. We bear in mind that from the laws of the Respondent, the Ombudsman had no appellate power over the Supreme Court of Rwanda. In Angella Amudo v. Secretary General of the East African Community, EACJ Appeal No. 4 of 2014, this Court cited with approval the decision of the Privy Council in Muhammad Hafiz v. Muhammad Zakariya [1922] 49 I.A. 9 that: "... the cause of action is what gives occasion for and forms the foundation of the suit." The Court further explained that any claim or suit, be it in tort, contract, etc. must always be based on a cause of action and that cause of action is the reason or basis for which a suit or claim is brought. 59. Similarly, in ABBA Limited v. the Attorney General of the Republic of Rwanda, EACJ Appeal No. 10 of 2022, at paragraph 40, this Court observed as follows: "in the present Appeal, the Trial Court carefully considered the Appellant's pleadings and concluded, rightly in our view, that the real cause of action as pleaded by the Appellant was the alleged violation of the Treaty by what he considered to be the illegal and unlawful revocation by the District Council of the agreement for the sale of the market". The Trial Court observed as follows: "Whereas the Applicant broadly contended that his cause of action arises from the decision of the Ombudsman, in Paragraph 23 of the Reference, the Applicant seeks for "Dissolution of the decision revoking the sale agreement and for award of compensation to ABBA by the District of Rubavu due to their alleged illegal decision." It is discernible from this very paragraph 24 that the offending act for which the Applicant seeks relief is indeed the revocation of the sale agreement of Gisenyi Modern Market by the Mayor of Rubavu and further that the compensation sought is to be exclusively realized from the District of Rubavu on account of their alleged illegal decision." 60. At paragraph 41, the Court concluded that: "having carefully considered the record, it is sufficiently clear from the statement of claim and the Appellant's submissions both before this Court and the Trial Court, that the gravamen of its claim is the alleged violation of the Treaty by what it considered to be the illegal revocation of the sale of the Market to it. The express and unequivocal reliefs that the Appellant sought in the statement of claim are restoration of the revoked agreement for sale of the Market or compensation. Such reliefs are directed at the decision of the District Council rather than at the decision of the Ombudsman. Accordingly, from the Appellant's own pleading rather than from its submissions and assertions, we agree with the Trial Court that time for purposes of Article 30(2) of the Treaty, was to be reckoned from the date of the cancellation of the agreement for sale, namely, 25th June 2015. For that reason, the Appellant's Reference No. 18 of 2018 which was lodged on 1st August 2018 was time-barred and the Trial Court did not have jurisdiction -ro entertain it." [EmphasisT - - -- 61. We are therefore, from the reasoning clearly underlined in the above paragraphs and from the submissions by the parties, both in their written and oral submissions, unequivocally satisfied, that Reference No. 11 of 2018 which is the subject of the impugned Judgment delivered on 6th April 2022 was filed out of the time limitation of two months, required under Article 30(2) of the Treaty, as held by the Trial 25 Court; and the consequence being that the Trial Court had no room to entertain the Reference which was time-barred, due to lack of jurisdiction ratione temporis. Without jurisdiction, the Court downs its tools. 62. This Court also held in in Attorney General of the United Republic of Tanzania v. African Network for Animal Welfare, EACJ Appeal No.3 of 2011 that: ".. .jurisdiction is a most, if not the most fundamental issue that the Court faces in any trial. It is the very foundation upon which the judicial edifice is constructed; the fountain from which springs the flow of the judicial process. Without jurisdiction, a Court cannot even take the proverbial first Chinese step in its judicial journey to hear and dispose of the case". 63. This Court also extensively dealt with the conceptualization of jurisdiction for purposes of the adjudication of cases in the EACJ in Alcon International LTD v. The Attorney General of the Republic of Uganda and Others (supra). Suffice to say that the Court noted that the word jurisdiction: ". .. is used as a unitary concept to denote three essential elements which enable the Court to operate", namely: jurisdiction ratione materiae (subject matter), jurisdiction ratione personae _ --Ooeus _ st-Bndi), end jt:1risdietion_ ,"'Btione temporis (tempora{ condition)". The absence of any of the above essential elements of jurisdiction would disavow this Court the mandate to entertain a dispute. The jurisdictional element in question in the Trial Court was whether the Appellant had complied with the temporal condition of two months provided for under Article 30(2) of the Treaty to institute the Reference in this Court. 26 64. From our scrutiny of the whole record of the Trial Court, the submissions by the parties, the authorities and jurisprudence available, it is crystal clear that the Reference was time-barred and as a consequence, the Trial Court did not err in holding that it does not have jurisdiction ratione temporis to entertain the Reference. 65. Therefore, issue number one is answered in the negative. 66. Before we take leave of this issue, it is very important to make our observations to the averments by Counsel of the Appellant in paragraph 10 of his written submissions that the Appellant proceeded to file the Reference for the Court to determine whether the State's action of refusing to honor an obligation it owed to him was in line with the provisions of the Treaty on the principles of good governance. Counsel also argued, in paragraph 39 of the written submissions that, the Trial Court failed to appreciate the centrality of the principles of good governance and rule of law in financial transactions, which is intended to promote free market economy. [Emphasis] 67. In Baranzira Raphael & Another v. Attorney General of the Republic of Burundi, EACJ Reference No. 15 of 2014, this Court examined the concept of rule of law. Quoting from a UN Report, the Court stated that: "the concept of the rule of law refers to the principle of governance to which all persons, institutions and entities, public or private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principle of supremacy of the law, equality before the law, 27 accountability to the law, fairness in the application of the law, separation of power, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." 68. It must also be appreciated that this Court does not have the mandate outside that is provided for under Article 23(1 ), 27 and 30 (1) & (2) of the Treaty, to engage with issues of good governance and the rule of law. Without jurisdiction rationae temporis, the Court cannot arbitrarily assume and determine issues of good governance and the rule of law. ISSUE N0.2: REMEDIES 69. The Appellant urged the Court to grant him the remedies set out in paragraph 16 of the Judgment and to award him costs of the reference and of this Appeal. On the other hand, the Respondent submitted that the Appellant is not entitled to any remedies and prayed that the appeal be dismissed with costs. 70. Having answered Issue No. 1 in the negative, all the reliefs sought by the Appellant as captured in paragraph 16 of this Judgment are unavailable. This Court has no basis to make any order as prayed by the Appellant once it finds that the Reference was time-barred and that the Trial Court did not err in declining to determine the same for lack of JarlsCJ ictlon. In otrier words, ffie 1\ppellant Is not entitled to any of the remedies sought. 71. In ABBA Limited v. Attorney General of the Republic of Rwanda (supra) while considering the issue of remedies (which is which was similar to this Appeal), this Court held as follows: "we have answered issue No. 1 in the negative, meaning that the Trial Court did not err when it held that the Appellant's Reference 28 • I J / No. 18 of 2018 was time-barred and that the Court did not have jurisdiction to entertain it. Having so found, it means that the decision of the Trial Court is upheld and therefore the Appellant is not entitled to the remedies it had prayed for." 72. Turning now on costs, the Trial Court directed each party to bear its own costs. By dint of Rule 127 of the Rules, "costs in any proceedings shall follow the event unless the Court shall for good reasons otherwise order." 73. The general rule is therefore that a successful party is entitled to costs and the losing party pays costs, unless the Court is satisfied that there are good reasons to depart from the general rule. The Court must bear in mind, among others, the conduct of a party in determining whether there are good reasons to depart from the general rule on costs. 74. In Johnson Akol Omunyokol v. Attorney General of the Republic of Uganda, Application No.10 of 2022, in paragraph 51, where the Court stated that: " ... taking the history of this litigation into account, the numerous unmeritorious applications and appeals whose combined effect has been to delay the hearing and determination of the Reference before the Trial Court, we do not see any good reason to depart from the rule that costs follow the event. According_/½ we award costs of this Application to the Respondent." 75. The same reasoning for awarding costs to the winning party was advanced in Dr. Margaret Zziwa v. the Secretary-General of EAC, EACJ Appeal No. 2 of 2017, where this Court held that: "costs are in the discretion of the Court (and that) in exercising such discretion, the Court bears in mind that costs follow the event and that a successful party may only exceptionally be 29 ·1 1 I r deprived of costs depending on the particular circumstances of the case such as the conduct of the parties themselves or their legal representations, the nature of the litigants, the nature of the proceeding or the nature of the success." 76. Coming back to this Appeal, we take into account the conduct of the Appellant of trying to pursue a matter that has been overtaken by event many years ago through the backdoor and under the guise of a claim against the Ombudsman's refusal to review the decision of the Supreme Court of the Respondent. In those circumstances we are satisfied that there is no good reason to depart from the general rule that costs follow the event. Accordingly, we award to the Respondent costs of this Appeal and costs of the Reference in the Trial Court. DISPOSITION. 77. The upshot of our consideration of the Appeal is that: - (1) The Appeal be, and is hereby dismissed; (2) The Appellant should bear the Costs of the Appeal and the Costs of the Reference in the Trial Court. IT IS SO ORDERED DATED, DELIVERED, AND Nestor Kayobera PRESIDENT 30 ,.r , I 1 Anita Mugeni VICE-PRESIDENT ...................... .............................. . Kathu ima M'lnoti JUSTIC OF APPEAL Cheborion Barishaki JUSTICE OF APPEAL ............................... ..................... . Omar Othman akungu JUSTICE OF APPEAL 31