nzambimana edouard estate v attorney general of republic of burundi refererence no 23 of 2019 2024 eacj 16 28 november 2024

a ~--"" IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION (Coram· Yohane B. Masara, PJ; Richard Muhumuza; Richard Wabwire Wejuli; Leonard Gacuko & Kayembe Ignace Rene Kasanda, JJ) REFERENCE NO. 23 OF 2019 NZAMBIMANA EDOUARD ESTATE ................................... APPLICANT VERSUS THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI ........................................ RESPONDENT 28 th NOVEMBER 2024 JUDGMENT OF THE COURT A. INTRODUCTION 1. On 21 st November 2019, Mrs Francoise-Romaine Bibwana, on behalf of Nzambimana Edouard Estate (hereinafter, "the Applicant"), filed this Reference against the Attorney General of the Republic of Burundi (hereinafter, "the Respondent"). The Reference was brought under the provisions of Articles 6(d), 7(2), 23, 27 and 30 of the Treaty for the Establishment of the East African Community (hereinafter, "the Treaty") and Rules 24(2), (3) and (4) of the East African Court of Justice Rules of Procedure, 2013 (hereinafter, "the 2013 Rules"). 2. The Reference was filed pursuant to the defunct 2013 Rules as the current Rules only came into force in 2020 long after the Reference was initiated. Pursuant to Rule 136 of the East African Community Court of Justice Rules of the Court, 2019 (hereinafter, "the Rules"), in all proceedings pending in the Court, preparatory or incidental to, or consequential upon any proceeding in Court at the time of the coming into force of the Rules, the provisions of the Rules shall thereafter apply, without prejudice to the validity of anything previously done. Thus, the Rules shall apply mutatis mutandis in this Reference. 3. On 7th November 2022, following leave of the Court, the Applicant filed an Amended Reference (hereinafter, "the Reference"). 4. The Reference seeks to challenge the decision of the Respondent through its agent, the Appeal Chamber of the Special Court of Lands and other Property (hereinafter, "the Special Court") made on 28 th REFERENCE 23 OF 2019 Page 1 August 2019 but served on the Applicant on 26 th September 2019. The impugned decision is RSTBA 0280. 5. The Reference is supported by the Affidavit of Bibwana Francoise, the Representative of the Applicant, deponed in Bujumbura and filed in Court on 12th April 2023. 6. The Applicant presented himself as a physical person, represented by Mr Jean Bosco Ngendakubwayo, a resident of Bujumbura in the Republic of Burundi, a Partner State of the East African Community. His address of Service is c/o Mr Jean Bosco Ngendakubwayo, 28 Avenue de L'lndustrie, Building Sella, P.O. Box 6831 Bujumbura. 7. The Respondent is the Attorney General of the Republic of Burundi, sued on behalf of the Government of the Republic of Burundi in the capacity of the principal legal advisor of the Government. Her address of Service is Ministry of Justice, Civic Protection and Custodian of the Seal, P. 0. Box 1880 Bujumbura, Burundi. B. REPRESENTATION 8. At the trial, the Applicant was represented by Mr Jet Tumwebaze and Mr Jean Bosco Ngendakubwayo, learned Advocates. However, Mr Jean Bosco Ngendakubwayo died before conclusion of the hearing (MHSRIP). The Respondent was represented by Mr Diomede Vyizigiro, Director, Civil Litigation and Mr Pacifique Barankitse, Senior State Attorney both from the Attorney General's Office, Republic of Burundi. C. THE CASE FOR THE APPLICANT 9. The Applicant's case is contained in the Statement of Reference lodged in Court on 21 st November 2019, the Amended Statement of REFERENCE 23 OF 2019 Page 2 Reference lodged in Court on 7th November 2022, the supporting Affidavit of Bibwana Francoise deponed in Bujumbura and filed in Court on 12th April 2023 and the Affidavit in Rejoinder deponed by Bibwana Francoise and lodged in Court on 19th May 2023. The Applicant also filed written submissions in support of his case and submissions in rejoinder. The same were highlighted in Court on 30 th September 2024. 10. It is the Applicant's case that preceding the impugned decision of the Respondent, the Applicant purchased 207 hectares and 60 ares ("the suit property") from Ruzizi Company. 11. That Ruzizi Company was the registered proprietor of the suit land and had applied and obtained the required approvals including the right to use, enjoy, sell and assign the suit property. 12. That the late Nzambimana Edouard expressed his intention to purchase the suit property from Ruzizi Company. The Board of Directors of the said Ruzizi Company agreed to sell the said property and transferred the said suit property to the late Nzambimana Edouard in 1990 following approvals from the Respondent's designated officials. 13. That the Applicant enjoyed quiet possession of the suit property for a considerable period of time until the year 2019 when the Respondent, through its agent, the Special Court, dispossessed the Applicant of the suit property without compensation. 14. The Applicant thus prayed for: a. A declaration that the Applicant's Reference has merit; REFERENCE 23 OF 2019 Page 3 b. Annulment of the impugned decision RSTBA 0280 made by the Respondent's agent, the Special Court, dated 28 th August 2019; c. A declaration that the Applicant is entitled to special damages arising from loss of land, property and earnings from the rental proceeds, as detailed in the Reference; d. An award of interest in the sums awarded above from the date of the removal of the Applicant from the suit land until payment in full; e. General damages; f. Costs of this Reference be borne by the Respondent; and g. Any other reliefs and/or remedies that this Honourable Court deems fit. D. THE CASE FOR THE RESPONDENT 15. The Respondent's case is contained in his Response to the Reference filed on 17th January 2020, the Respondent's Reply to the Amended Reference filed on 28 th November 2022 and in the Respondent's Affidavit in Reply deponed by Hajayandi Gervais, Permanent Secretary, Ministry of Justice, filed in Court on 27 th April 2023. The Respondent also filed written submissions and highlighted them in Court on 30 th September 2024. 16. The Respondent in response to the Applicant's claims contends that the decision taken by its agent, the Special Court, was justified in that, as all lands received by Ruzizi were intended for Agricultural REFERENCE23OF2019 Page4 use, failing to do so, all the unexploited lands would be taken back in the State's domain. 17. That, unable to exploit all the land as agreed with the State, Ruzizi asked permission to seek a lessee who should be placed under the same operating conditions as him. That instead Ruzizi sold the land to ERCO company. That Ruzizi did not have the right to dispose the land as he held a right of concession only. Further, that ERGO company was supposed to comply with conditions regarding the exploitation of the suit land. 18. The Respondent further contends that the condition relating to the exploitation of the concession as restated in the letter of authorisation dated 19th March 1991 was not complied with as the Applicant was only getting profit through rental of the suit property instead of installing industrial agriculture as agreed. That failure to abide by the conditions of the land use gave the State the right to repossess the land and give it to someone else who would exploit it for the intended purpose. 19. It is therefore the Respondent's case that the Applicant failed to abide by the conditions set and cannot be allowed to continue possessing the suit property and that the decision made by the Special Court was justified. 20. That the Special Court did not violate any provision of the national law or the Treaty; thus, the Reference should be dismissed with costs. REFERENCE23OF2019 Page 5 E. ISSUES FOR DETERMINATION 21. In the Scheduling Conference held in Arusha on 13th March 2023, the following issues for determination were agreed : i. Whether the Applicant has locus standi to refer the Reference before this Court; ii. Whether the Applicant is the legal owner of the land comprised in an area of 207 hectares and 60 acres purchased from the Ruzizi Company; iii. Whether the Judgement RSTBA 0280 rendered by the Appellate Division of the Special Court of Lands and other Property violated the Treaty for the establishment of the East African Community, especially in its Articles 6(d) and 7(2); and iv. Whether the Parties are entitled to the remedies sought. F. COURT'S DETERMINATION ISSUE 1: Whether the Applicant has locus standi to refer the Reference before this Court 22. Both in the Reply to the Reference and the Reply to the Amended Reference, the Respondent challenged the jurisdiction of this Court. Whereas in the first Response the challenge to this Court's jurisdiction was that the Court lacked jurisdiction to entertain the Reference which arises from the decision of the Highest Court of Burundi and that by so doing it will be sitting as an appellate court to domestic courts, in the Response to the Amended Reference the objection to jurisdiction turned to whether the Applicant has locus standi before this Court. REFERENCE 23 OF 2019 Page 6 23. We will address this issue in limine as its determination may prompt this Court to down its tools and traverse none of the other issues agreed. A question as to whether a party has locus standi before this Court is a question on jurisdiction which must be addressed before dealing with the substance of the Reference. 24. In Alcon International Limited vs The Standard Chartered Bank of Uganda and Others, EACJ Appeal No. 3 of 2013, this Court cited with approval the statement of Nyarangi, JA, in the Court of Appeal of Kenya case of Owners of the Motor Vessel 'Lilian' vs Caltex Oil (Kenya) Limited (1989) KLR 1 as follows: "Jurisdiction is everything. Without it, a Court has no power to make one step. Where a Court has no jurisdiction, there would be no basis for a continuation of the proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds that it is without jurisdiction". 25. Indeed, the jurisprudence of this Court is replete with pronouncements on the primacy of determining jurisdiction where the issue is raised. Like all international Courts and tribunals, this Court derives its jurisdiction from its constituting instrument, the Treaty. The relevant provisions are Articles 23(1 ), 27(1) and 30 thereof. 26. Article 23 (1) provides: "The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with this Treaty." REFERENCE 23 OF 2019 Page 7 27. Article 27 (1) provides: "The Court shall initially have jurisdiction over the interpretation and application of this Treaty: Provided that the Court's jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States." 28. Article 30 provides: "1. Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty; 2. 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; andThe Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or REFERENCE 23 OF 2019 Page 8 action has been reserved under this Treaty to an institution of a Partner State." 29. In any situation where the Court is considering if it has jurisdiction to hear and determine a matter, all the above Articles must be considered together. In Eric Kabalisa Makala vs Attorney General of the Republic of Rwanda, EACJ Reference No. 1 of 2017, this Court stated: " .. .to succeed on a claim of lack of Jurisdiction in this Court, a party must demonstrate the absence of any of the three (3) types of jurisdiction: ratione personae/locus standi, ratione materiae and ratione temporis. Simply stated, these 3 jurisdictional elements respectively translate into jurisdiction on account of the person concerned, matter involved and time element." 30. The Respondent in the instant Reference challenges the Applicant's locus standi which means that the Court does not have Jurisdiction ratione personae over the Reference. In paragraph 1 of the Respondent's Response to the Amended Reference, the Respondent averred that it was ERCO, a company, that concluded the contract with Ruzizi; thus, Nzambimana Edouard, a natural person has no locus standi to bring the action before this Court. 31. In the written submissions, the Respondent's Counsel added another dimension to the issue of locus standi. Citing the Oxford Advanced Learners Dictionary, Mr Vyizigiro contended that the Applicant was neither a legal or natural person as the word "estate" meant either: a large area of land, usually in the country, that is owned by one person or family; an area of land with a lot of houses REFERENCE 23 OF 2019 Page 9 or factories of the same type on it; or, all the money and property that a person owns, especially everything that is left when he dies. 32. In the Respondent's view, "the large area of land, the land with a lot of houses or factories of the same type or money and properties that Nzambimana Edouard left after his death" do not have any locus standi to refer the Reference to Court. 33. Regarding the separate legal personality between the late Nzambimana Edouard and ERCO, Mr Vyizigiro argued that Mr Nzambimana Edouard was a stranger to the sale agreement between ERCO and Ruzizi, despite representing it in the agreement. He made reference to Article 63 of the Civil Code Book Ill of Burundi which states that "contracts only have effect between the contracting parties; they do not harm third parties; and they only benefit them in the case provided for in Article 21." 34. He went on to state that Article 21 of the said Code comes into play where a party specifically names a third party as a beneficiary of the agreement. Thus, in his view, only ERCO company would have standing regarding the disputed agreement. 35. Mr Vyizigiro also argued that even if the Applicant had a power of Attorney to represent ERCO Company, the Applicant will also fail in standing as the "conditions of the concession found in the Jetter of the Minister responsible for lands dated March 19, 1991, the disputed lands cannot be given to any other person nor be bequeathed to heirs". 36. During the submissions highlights, Mr Vyizigiro, while responding to the question asked by the Court whether the Applicant would have had locus standi if she was referred to as "the late Nzambimana REFERENCE 23 OF 2019 Page 10 Edouard Succession" instead, replied that in such case the Applicant would have locus standi to sue on behalf of the late Nzambimana but that in the present case the late Nzambimana had no right to pass over the land to his successors given the express condition given to Ruzizi by the Minister's letter of 19th March 1991 . 37. In response to the issue of lack of locus standi by the Applicant, Mr Tumwebaze submitted that the Applicant before the Court is the estate of the late Nzambimana Edouard, represented by his wife a duly appointed administratrix of the estate. That ERGO company was wholly owned by the late Nzambimana and that the company was not the beneficiary of the suit property, rather the beneficiary was the late Nzambimana himself. That Mrs Bibwana Francoise Romaine is in possession of the Affidavit registered on 28 th September 2015 which appointed her to represent the family of the late Nzambimana Edouard who died on 8th September 2015, for the interest of the estate. 38. To substantiate further, Counsel Tumwebaze contended that the late Nzambimana was the sole proprietor of ERGO Company and any interests held by the company were solely held by him as the sole shareholder of the company. He urged the Court to disregard the objection which, in his view, aimed at derailing the Court from assessing the substance of the claims. 39. During the submission highlights, Counsel Tumwebaze insisted that it was impossible to draw a distinction between ERGO Company and the Late Nzambimana Edouard considering the documents annexed to the Reference; namely, EX 7, EX 8 and EX REFERENCE 23 OF 2019 Page 11 11 showing that all correspondences and payments over the suit property were made in his personal capacity. 40. We have dispassionately considered the objection raised regarding the legal standing of the Applicant before this Court. In doing so, we have considered the pleadings and the supporting evidence relied upon by the parties and the written as well as the oral submissions by Counsel representing parties herein. 41. At the outset, we have no doubts in our minds that the name "Nzambimana Edouard Estate" referring to the Applicant does not mean "a large area of land owned by one person or family; or an area of land with a lot of houses or factories of the same type on it; or, all the money and property that a person owns before he dies" which the Respondent's Counsel tried to push in his quest to have the Applicant's locus standi impeded by this Court. In our considered view, and as amply stated by Mr Tumwebaze, the same refers to Nzambimana Edouard's Succession or Heirs. 42. We will therefore not delve into discussing what an 'estate' is in law. In our considered view, the question that begs determination by this Court is whether the heirs of the late Nzambimana Edouard, represented by his wife, Mrs Bibwana Francoise, have locus standi before this Court. 43. In Inspectorate of Government vs Geofrev Kazinda & Another, EACJ Application No. 23 of 2022, this Court held that: "The absence of jurisdiction ratione personae renders the Court devoid of capacity to conduct any form of action except put down its legendry pen." REFERENCE23OF2019 Page 12 44. Thus, if indeed the Applicant's locus standi is successfully impugned, we will have no option but to down our tools. 45. From the records availed to the Court, there is no gainsaying that the suit property was bought from Ruzizi Company by the late Nzambimana Edouard using the name of a company known as ERCO. However, all the transactions involving the property were made in the name of Mr Edouard Nzambimana, the Managing Director of the said ERCO company. 46. None of the parties herein presented evidence of the incorporation of the said ERCO company. We, therefore, are not in a position to ascertain whether the said ERCO company exists or existed in law or it was merely a name used by the late Nzambimana Edouard for reasons best known to him. We say so because, in the documents presented by the Applicant, Annex AE 8 mentioned the buyer of the land of equivalent size to be Mr Edouard Nzambimana. 47. We further observe that the objection as to the Applicant's standing did not arise during the hearings conducted for and against it at the Respondent's judicial bodies. For example, in RSTBA 0280 before the Special Court, the Applicant was impleaded as the 2nd Respondent in the name of "the Succession of NZAMBIMANA Edouard represented by Ms. Bibwana Francoise". 48. As this Reference is brought against the above referred matter, it will be against the tenets of justice were this Court to deny the Applicant locus standi before it, the same having been accorded to it in the proceedings giving rise to the instant Reference and by the institution whose decision is impugned before this Court. REFERENCE23OF2019 Page 13 49. In the premises, we decline the invitation by the Respondent to deny the Applicant locus standi before this Court. We affirm that this Court possesses jurisdiction ratione personae over the matter. We will, thus, proceed to determine the merits of the Reference. ISSUE 2: Whether the Applicant is the Legal Owner of the Land comprised in an area of 207 hectares and 60 ares purchased from the Ruzizi Company 50. Submitting in support of this issue, the Applicant averred that it was the owner of the suit property which was acquired from the previous owner, Ruzizi Company, in 1990. 51 . The Applicant traced the history of the suit land from 1932 when the Respondent's predecessor government of Ruanda - Urundi sold to Ruzizi company 5 hectares of land for agricultural purposes. That in 1947, the same government sold to the said Ruzizi company 202 hectares and 60 ares. The deeds of sale were attached as AE1 and AE2. That, Ruzizi company was given certificate of titles over these pieces of land. 52. Mr Tumwebaze submitted further that the said pieces of land were held by the said Ruzizi company for 58 years for the first acquisition and 43 years for the second acquisition, before Ruzizi company sold the same to Mr Nzambimana Edouard. Counsel Tumwebaze insisted that there was no doubt that the land was lawfully owned by Ruzizi company as per the opinions of the Government officials and the Cabinet and in line with Article 21 of the Land Code of Burundi. 53. He went on to state that, the sale of the suit property to the Applicant was validated and sanctioned by the Board of Directors of Ruzizi company. That, in October 1990, the Respondent's Cabinet REFERENCE 23 OF 2019 Page 14 discussed the financial affairs of Ruzizi and noted that Ruzizi company was the lawful owner of the land in question. The Cabinet, thus, allowed Ruzizi to dispose of the land in order to pay its debts. This information was passed over to Ruzizi company by the Minister of Planning, Tourism and Environment. 54. That, following the said government position , the Applicant proceeded to effect payment of taxes with respect to the purchase of the land. Incidentally, Counsel averred, the Applicant was yet to be given the certificate of titles to enable transfer of title to be effected when a number of claims were filed against the Applicant. 55. Mr Tumwebaze, urged the Court to hold that the Applicant's ownership of the suit property was beyond reproach and should be declared the lawful owner of the suit property, having lawfully purchased it from the original owner, Ruzizi company. 56. Responding to the Applicant's assertions on this issue, Counsel for the Respondent vehemently opposed the argument that Ruzizi company was the original owner of the suit property. In his view, Ruzizi was merely a concessionaire of the land who had no right to sell the same. 57. Mr Vyizigiro argued that the sales agreements dated June 15 and June. 18, 1990 between the Applicant and Ruzizi were concluded fraudulently without leave of the State of Burundi. That, owing to the illegalities of Ruzizi company selling concessionary rights to the Applicant, the decision of the Special Court which revoked the sale contracts and returned the suit property to the State is justified. 58. Mr Vyizigiro contended further that the Applicant cannot claim ownership of the land using the certificate of title issued to Ruzizi REFERENCE 23 OF 2019 Page 15 company. Further, that the sell contracts are in the name of ERCO company which is a distinct person from Nzambimana Edouard, a natural person. Counsel for the Respondent also loathed the failure of the Applicant to process the title from 1990 to 2005 despite being a person occupying high position in the Government. 59. Mr Vyizigiro also insisted that, as per the letter of the Minister responsible for land matters dated March 19, 1991, the suit land was not supposed to be donated or bequeathed to heirs as it was granted under concessionary terms. Further, that the Applicant could not have rights that the transferor did not have, Counsel argued. 60. In a brief rejoinder, Counsel Tumwebaze, while responding to the issue relating to failure by the Applicant to process title deeds in his name, submitted that from the Evidence of the Applicant (AE15) the Applicant diligently followed up the process to have the titles changed to his name and obtained government approvals in that regard. That, failure to issue the Applicant with title deed was a deliberate move by the Respondent with the aim of depriving the Applicant the right over the suit property. He specifically referred to the communication dated 17th December 1992 whereby the Inspector General of Finance authorised the Director of Notary and the Land Title Director to proceed to transfer the title deeds into the names of the Applicant. 61. Regarding whether the land could be inherited, Counsel Tumwebaze submitted in rejoinder that the Application before the Court is not for inheritance, rather, it is for compensation as a result of the Respondent's action of depriving the Applicant the right to REFERENCE 23 OF 2019 Page 16 own and utilise the suit property. He reiterated the prayer to have the Applicant confirmed as the rightful owner of the suit property. 62. We have dispassionately considered the rival submissions and evidence by the parties herein. We are unable to agree with the assertion that the Applicant was not the owner of the suit property, at least before it was given back to the Respondent Government by the institutions of the Respondent. 63. Counsel for the Respondent based their contentions on the land use conditions given to the previous owner, Ruzizi company, by the Respondent's authorities. They argued that although the said Ruzizi company had certificate of title over the suit property, it was not allowed to dispose of the land to anyone, let alone the Applicant, as it was not the owner of the land in question. 64. This assertion, however, is not backed up with evidence presented. From the documents presented by the Applicant (Annexes AE1, AE2 and AE3 in the trial bundle, also attached to the Reference), Ruzizi company bought the land in question from the colonial government of Ruanda-Urundi and was given titles to the land in question. It was, however, given conditions over its ownership; namely, to use the same for agricultural purposes. 65. Again, when the financial conditions of Ruzizi Company deteriorated and it was forced to mortgage part of the land it owned, the Respondent, vide the decision of the Cabinet confirmed that the land mortgaged was solely owned by the said Ruzizi who had a right to dispose it in order to pay the loans it had obtained from different banks in the Respondent's State. There exist also letters from Ministers of the Respondent confirming that the land in question REFERENCE 23 OF 2019 Page 17 belonged to Ruzizi Company and its right to dispose of the same. These documents were not opposed by the Respondent. 66. During hearing, Counsel for the Respondent argued that none of the documents sanctioned Ruzizi to dispose of its land to the Applicant and that there were issues with translation from French to English. We expected the Respondent to submit the correct translations, but they only seemed to have a problem with the word 'dispose' as opposed to 'sell'. We are obliged to quote some of the documents relied upon by the Applicant in support of its entitlement to the suit property. 67. AE12 in the trial bundle is a confidential report of the Cabinet meeting of 11-10-1990 which was chaired by Adrien Sibomana, the then Prime Minister and Minister of Planning. One of the agenda items of the meeting was "draft Legislative Decree Returning to State ownership the Abandoned Lands of 1200ha at Nyakagunda and 207 at Musenyi". While quoting the opinion of the Minister of Justice provided to the Department of Notary and Land Titles, the Cabinet said: "The RUZIZI Company, the owner of these lands took loans of 100 million Burundian francs from BNDE (50 million) and the BNDE-BANCOBU-BCB consortium (50 million) and gave these lands as mortgages. These lands were sold to RUZIZI on condition that they be operated without interruption. During their deliberations, the members of the Government noted that the file contains deficiencies, especially with regard to the titles of property. As a result, REFERENCE 23 OF 2019 Page 18 they decided to allow RUZIZI to dispose of these lands and to demand that they be exploited or have them exploited." (Emphasis added) 68. Following the above decision of the Cabinet there were a number of communications including the letter of Louis Nduwimana, the Minister of Development, Tourism and Environment dated 19th March 1991 addressed to the Chief Executive Officer of Ruzizi company. In this letter (AE30) the said Minister stated partly: "I hereby have the honour of office to the best of my knowledge that I agree that these lands will be sold, in accordance with the decision of the Government and in accordance with the principles attached to the right of ownership . .. .In that regard, the new owner of these lands, that is to say the new owner remains subject to the obligation to exploit these lands in the context of the only projects of interest to the Government. The land thus sold will not be donated or bequeathed. This is a mandatory limitation to the attributes of the property. In the event that these instructions are not observed, the government shall be entitled to cause the breach of the sales contract and declare the return of these lands to its d omam. ... " 69. Arising out of the above validation on the right of Ruzizi company to sell its land, the purchase of the suit property by the Applicant was completed. As there exists no proof that the Applicant failed to REFERENCE 23 OF 2019 Page 19 comply with the conditions set by the Respondent, we find the Respondent's contention wanting. 70. In the circumstances, having executed the contract of sale and having paid the necessary fees and taxes over the suit property, as authorised by the Respondent, the Applicant acquired the right of ownership over the suit property. 71. We, thus, answer Issue 2 in the affirmative. ISSUE 3: Whether the Judgement RSTBA 0280 rendered by the Appellate Division of the Special Court of Lands and other Property violated the Treaty for the establishment of the East African Community, especially in its Articles 6(d) and 7(2) 72. This issue is obviously core to the Applicant's case before this Court. It is the issue that led the Applicant to knock at the doors of this Court to have the impugned decision weighed against the Treaty provisions invoked. 73. Both in the Affidavit in support of the Reference and in the Affidavit in Rejoinder, the Applicant impugns the Respondent's Decision RSTBA 0280 as being violative of both the Burundi law and the Treaty. 74. In the written as well as oral submissions, Counsel Tumwebaze, while canvassing this issue, implored the Court to be guided by the express provisions of Articles 6(d) and 7(2) of the Treaty; this Court's decision in Le Forum Pour Le Renforcement de la Societe Civile (Forsc) & 4 Others vs The Attorney General of the Republic of Burundi & Another, EACJ Reference No. 12 of 2016; Article 4 of the Draft Articles on the Responsibility of the State REFERENCE 23 OF 2019 Page 20 for Intentionally Wrongful Acts and Paragraph 6 of the Commentary to the Draft Articles, guides in the interpretation of Article 4. 75. Counsel for the Applicant argued that the impugned decision was in contravention of good governance and rule of law principles, including the right to own property. That, the reasons advanced by the Special Court to condone repossession of the suit property by the Government were wrong, in that, it was not true that the Applicant had not abided by the conditions issued for the utilisation of the suit property as an agricultural land. That, dispossession of the Applicant contravened the Respondent's own law and thus a violation of the Treaty as was held in Plaxeda Rugumba vs the Attorney General of Rwanda, EACJ Reference No. 8 of 2010. 76. Counsel also cited the decision of this Court in Baranzira Raphael & Another vs Attorney General of the Republic of Burundi, EACJ Reference No. 15 of 2014, where the principle of rule of law was emphasized. It was stated categorically that rule of law requires all persons, institutions (both public and private) to be accountable to the laws and that measures are put in place to ensure adherence to supremacy of the law, equality before the law, accountability to the law, etc. 77. Mr Tumwebaze submitted further that the right to own property alone as well as in association with others is a well-respected international law principle. He cited Article 17 of the Universal Declaration of Human Rights, 1948 and Article 14 of the African Charter on Human and People's Rights. 78. In relation to the laws of Burundi, Counsel for the Applicant submitted that the Respondent's Constitution guarantees the right REFERENCE 23 OF 2019 Page 21 to property in Article 36, which Article provides that no person shall be deprived of his property except for reasons of public utility or for exceptional and State approved reasons, whereby the State is obliged to pay just and prior compensation. 79. Further, that Articles 407 to 433 of the 1986 Land Code of the Republic of Burundi provide procedures for expropriation, whereby expropriation of large pieces of land requires a decree of the Government. That, none of the required legal principles were taken into consideration by the Respondent before taking over of the suit property in violation of both local and international law. 80. Regarding failure to develop the suit property, Counsel Tumwebaze argued that the contention was inaccurate as since acquiring the suit property in 1990, considerable investments were made in construction of buildings, in acquisition of modern agricultural equipment, levelling of the land with machinery, development of irrigation infrastructure, electric connections, etc. 81. That, in partnership with the growers of Musenyi, the Applicant produced significant quantities of green beans and tobacco until 1995 when they were forced to abandon everything due to civil war. That, the impact of the war was devasting as the buildings and equipment were ransacked and looted. That, the Applicant suffered serious damages which the Respondent failed to redress despite the Applicant's plea for compensation. 82. In response, Counsel for the Respondent urged the Court to hold that the impugned Decision RSTBA 0280 did not violate the Treaty in any way. That the Applicant has not substantiated by evidence how the said decision violates the Treaty. REFERENCE 23 OF 2019 Page 22 83. Regarding the issue of compensation, Counsel for the Respondent argued that compensation could not be made to the Applicants as the purported contacts of sell were null and void following Ruzizi company's lack of mandate to dispose of the suit property. That, it is lack of mandate to sell which made the Special Court to nullify the sale agreements when it held: "whereas that sale between RUZIZI company and the estate of NZAMBIMANA Edouard become void since RUZIZI company sold what was not part of their ownership referring to Article 276 of the 3rd Book of the Code for Civil Procedures which stipulates: 'selling what belongs to someone else has no value ... "' 84. Mr Vyizigiro also countered the argument made by the Applicant that part of the reason for dispossessing him of the suit land was non-use. In his view, that was not the reason, but the invalidity of the contracts of sell. That, in any case, even if that was the ground, the Special Court would still be right as failure to abide by the conditions of land use was a ground for repossession. 85. Counsel for the Respondent further averred that the Applicant's evidence that he was collecting rent from the suit property, amounts to failure to abide by the conditions attached to his possession of the land and the remedy was repossession as was rightly adjudged by the Special Court. 86. Responding to the accusation of the Respondent's failure to protect the Applicant's right to property, Mr Vyizigiro vehemently contested that accusation on the ground that the Applicant who had no land right over the suit property cannot claim protection of the law he relies on in his submissions. REFERENCE 23 OF 2019 Page 23 87. Counsel for the Respondent, thus, urged the Court to hold that the impugned decision made by the Special Court does not violate the Treaty. 88. In rejoinder, Mr Tumwebaze reiterated his submissions and added that Ruzizi company obtained all the required approvals of the State of Burundi before proceeding to sell the disputed land to the Applicant. 89. Having outlined the rival arguments by the parties, it is evident that determination of this issue largely relies on our conclusion regarding ownership of the suit property made in the second issue. We have failed to comprehend the reasons behind the Special Court's cancellation of the sales agreements between Ruzizi Company and the Applicant or its decision to invalidate certificates of title to the suit property. 90. If indeed the contract(s) were ineffective due to lack of mandate to sell by Ruzizi, why would returning the land to the State be the solution to the observed deficiencies, especially after the Applicant had been in possession of the land for nearly 30 years? 91. As observed in the previous issue, Ruzizi company sought and was granted the right to dispose or sell the suit property. A contract of sell was concluded between it and the Applicant. The Applicant proceeded to pay all the required fees and taxes to the government and took possession of the suit property. We fail to comprehend why an institution of the Respondent will turn around and declare the contracts invalid and proceed to take the land away from its owner and hand it over to the Government, whose Cabinet had declared the land to be legally owned by Ruzizi in perpetuity. It is also absurd REFERENCE23OF2019 Page 24 that the handing back of the property was made without an order to compensate the Applicant who had acquired the property for value. 92. It is further noted from the evidence presented, particularly AE 10 and AE 30, letters dated 5th November 1990 and 20th March 1991, from Ruzizi Company's Managing Director to the Applicant, copied to several authorities of the Respondent; the letters from the Applicant to the Director of Land Titles dated 14th October 2004 and 22 nd March 2005 and the Communication dated 17th December 1992 whereby the Inspector General of Finance authorised the Director of Notary and the Land Title Director to proceed to transfer the title deeds into the names of the Applicant, the Applicant made efforts to have the land in dispute registered in his name. 93. In Francis Ngaruko vs The Attorney General of the Republic of Burundi, EACJ Reference No. 9 of 2019, this Court, while dealing with an akin dispute stated as follows: "We are mindful of the fact that a person may be deprived of a property if it is proved that the said property was fraudulently obtained. We are also mindful of the fact that the right to own property is inalienable and is protected by the Constitution and the Laws of the Respondent State. Depriving the Applicant of a property he acquired for value and whose previous owner never complained about cannot be considered to be consonant with the Treaty." 94. As garnered from the evidence supplied to the Court and as ably submitted by Counsel, there is no doubt in our minds that the Applicant legally acquired the right over the suit property from its REFERENCE 23 OF 2019 Page 25 original owner, Ruzizi Company. During the proceedings held in various adjudicatory machineries in the Respondent's State, Ruzizi company was not made a party or even called to testify for or against the sell it did to the Applicant. Despite that, the Special Court, sitting in its first instance, went ahead and cancelled the title deeds originally held by Ruzizi company on the grounds that they were issued illegally. That contention was without proof and went against the principles of natural justice as the owner of the titles was condemned unheard. 95. By cancelling the title deeds originally issued to Ruzizi Company, the Special Court, first instance, impliedly declared the sale of the suit property to the Applicant invalid. It went ahead and gave the land back to the Government. On appeal to the appellate division of the Special Court, the Special Court confirmed the decision regarding the ownership of the land by Ruzizi company. The Special Court also stated that the Applicant could not rely on the titles issued to Ruzizi Company. 96. Going through both decisions of the two chambers of the Special Court, we see no evidence to disprove that Ruzizi legally owned the suit property before selling it to the Applicant. This is confirmed by the Minutes of the Cabinet of October 1990 and the letter of the Minister responsible for land matters dated March 1991. In the said communications, ownership of the suit property by Ruzizi Company was confirmed. Similarly, the said Ruzizi company was authorised to sell the land in order to offset its debts. The only condition was for the buyers to abide with the conditions against which the pieces of land were given to Ruzizi. REFERENCE 23 OF 2019 Page 26 97. The Special Court had no basis, in our view, to question the legality of the certificates of title by Ruzizi company relying on bare assertions by the Respondent's lawyers. Unfortunately, this was done after the said Ruzizi company had been in ownership of the suit property for many years and the Applicant had been in occupation of the land for nearly 30 years. 98. In Francis Ngaruko (Supra) this Court, while impugning the decision of the same body had this to say: "It is not the duty of a Court of law to fetch pieces of land and give them to whomever they desire. Courts of law are established to determine matters brought to them by parties. This case presents a unique situation where Courts of the Respondent constituted themselves as parties to the dispute and not umpires of the matter brought to them by parties. That, on the records before us, constituted a breach of the laws of Burundi relating to right to property and consequently an abrogation of the Treaty as submitted by the Applicant's Counsel." 99. Similarly, in this matter we reiterate the above position. We note that the Respondent was not a party to the proceedings initiated by one Ntahonkuriye Edouard representing 36 families from Mpanda Commune in the National Commission on Lands and other Assets, whose decision of September 2014 directed the Applicant's land to be returned to the State of Burundi. It came into the scene in 2016 when it was invited to do so by the Special Court, First Instance. From the Commission up to the decision of the Special Court, none of the decisions considered the issue of compensation of the REFERENCE 23 OF 2019 Page 27 Applicant as a result of the right to the property and the developments made therein. 100. This Court does not condone the taking away of a party's property without compensation. The Respondent's action, through its agent, of taking away the Applicant's land contravenes its own laws, particularly Article 36 of the Constitution of the Republic of Burundi, which Article provides that no person shall be deprived of his property except for reasons of public utility or for exceptional and State approved reasons. In case of acquisition of land by the State for any justifiable grounds, the Constitution requires that just and prior compensation be paid to the victim. 101. In the case at hand, unfortunately, the repossession of the Applicant's land was made without compensation. That was a contravention of the national laws of Burundi. As was held in Plaxeda Rugumba vs the Attorney General of Rwanda (Supra) contravention of its own law amounts to contravention of the Treaty as prayed by the Applicant. 102. Having so said, we are satisfied that the decision of the Special Court was not in line with the principles of good governance, including the rule of law as prescribed by Articles 6(d) and 7(2) of the Treaty. Accordingly, we answer Issue 3 in the affirmative. ISSUE 4: Whether the Parties are entitled to the remedies sought 103. In the Amended Statement of Reference, the Applicant beseeched the Court to grant a number of Reliefs to the Applicant. In addition to the declarations as to the impugned decisions violation REFERENCE 23 OF 2019 Page 28 of the Treaty, the Applicant also claims the award of special damages with interest, general damages as well as costs. 104. We are satisfied that the Applicant has proved to the satisfaction of this Court that the property in question legally belonged to him. Whereas it appeared to be the Applicant's case that the suit land be returned to her, in the Amended Reference, the Applicant seems to be keen on getting compensated for the value of the property. We think that prayer is justified. 105. With regard to the grant of special damages, the Applicant stated in the Reference that the current value of the suit property amounts to 21,530,500,000 BIF which is equivalent to USO 10,549,945.00 (say, Ten Million Five Hundred Forty-Nine Thousand Nine Hundred Forty-Five US Dollars). 106. The Applicant claims for lost earning in various periods totalling USO 229,878.00 and rental earnings of USO 1,029,693,600.00. The Applicant also prayed for an interest of 10% per annum on the decretal amount. 107. To justify the claims, the Applicant attached the Lease Agreement between Burundi Palm Oil Plants S.P.R.L and the Applicant (AE 17) dated 11 th February 2011. Before the Special Court, a company by the name of SAVONOR, Joint Stock Company, appeared and presented that it had rented from the Applicant more than 200 hectares for 30 years, which is the same time frame Burundi Palm Oil Plants S.P.R.L had entered with the Applicant. We are not certain whether the two companies are the same. It is therefore, impossible for the Court to ascertain the exact loss that the Applicant has or will suffer as a result of the dispossession of the suit property. REFERENCE 23 OF 2019 Page 29 108. Therefore, with regard to prayer for specific damages to the tune of USO 229,878.00 and USO 1,029,693,600.00 plus interest of 10% arising from lost rental earnings we are guided by the decision of the Appellate Division in the case of Attorney General of Rwanda vs Union Trade Centre Ltd (UTC) & 3 Others, EACJ Appeal No. 10 of 2020, that in absence of proof, the exact amount of compensation cannot be given. 109. With respect to the prayer for general damages, we are of the view that the same is justified considering the sufferings underwent by the Applicant after his source of livelihood was taken away from him. In the circumstances of this case, we believe the award of US $5,000,000.00 suffices to atone for the loss suffered. 110. On the question of costs, Rule 127(1) of this Court's Rules provides that costs shall follow the event unless the Court, for good reason, decides otherwise. This rule was emphatically reinforced in the Case of The Attorney General of the Republic of Burundi vs The Secretary General of the East African Community & Another, EACJ Appeal No. 2 of 2019. 111. We see no compelling grounds to depart from the general rule. We consequently award costs to the Applicant. G. CONCLUSION 112. For the foregoing reasons, this Reference has merits. The decision to take away the Applicant's land and give it to the Government was made in contravention of the Respondent's own laws and in violation of Articles 6(d) and 7(2) of the Treaty. REFERENCE 23 OF 2019 Page 30 113. Consequently, it is hereby DECLARED and ORDERED as follows: a) This Court has jurisdiction to determine the merits of the Applicant's Reference; b) The Applicant is the lawful owner of the suit property which is a piece of land measuring 207 hectares and 60 ares bought from Ruzizi Company in 1990 and which the Respondent's agent returned to the State of Burundi; c) The Applicant is entitled to just compensation by the Respondent of the value of the land and its development, in case the Respondent desires to continue possessing it; d) The Applicant is entitled to general damages to the tune of US $5,000,000.00; and e) The Respondent to pay the Applicant costs for this Reference 114. It is so ordered. REFERENCE 23 OF 2019 Page 31 Dated, signed and delivered at Arusha this 28 th day of November 2024. Hon. Justice Yohane B. Masara lNCIPAL JUDGE j ,-p2Ji ---- :::; ---------------------------- Hon. Justice Richard Muhumuza Hon. J Wabwire Wejuli E ----------------~ --------- Hon. Justice Dr Leonard Gacuko JUDGE --------- -----; -~- -------------------------------------- Hon. Justice Kayembe Ignace Rene Kasanda JUDGE REFERENCE 23 OF 2019 Page 32