Court Dismisses an Application seeking reinstatement of the EPA Case Appeal
East African Court of Justice Arusha, 10th May, 2018:
The Appellate Division dismissed the Application seeking the reinstatement of an appeal in the Economic Partnership Agreement (EPA) case. The Application which was fixed for a scheduling conference on 9th May was filed by a Tanzanian citizen, Mr Castro Pius Shirima (Applicant), on 5th March 2018.
The case was dismissed due to non appearance of the Applicant or his advocate which amounted to an abuse of court process. The Court said that after fixing the Application, all parties were notified, at the Scheduling Conference but neither the Appellant nor his Advocate appeared. All the Respondents were represented by their Counsels, except the Republic of South Sudan.
On 6th July, 2017, the First Instance Division declined to grant the orders as sought in theApplication seeking for an injunction to stop the Partner States which had not signed the EPA Agreement not to sign the same and those who had signed, to stop them from carrying out any further procedures and processes. This led the Applicant to the Appellate Division for appeal.
On 15th February, 2018, the Court dismissed Appeal No. 3 of 2017, for the reason that the conduct of the Appellant amounted to abuse of Court process within the contemplation of Rule 1(2) of the Court Rules on inherent powers of the court. This was demonstrated through the Appellant’s inappropriate communication to the Court and to the other Parties of his absence in Court then.
On 5th March, 2018, the advocate for the Appellant filed a notice of motion seeking an order for the same Appeal to be reinstated and heard on merits. The Motion was expressed to be made under Rule 107 of the Court Rules on non appearance of the Party.
The Court in its Ruling further said that it was persuaded that the Application be dismissed with costs as being abuse of court process for the following reasons; that the Application was misconceived and that the Appeal was not dismissed on non appearance but rather on amendment of documents. Therefore, it was not in the premises open to the Appellant to make his Application for the Appeal to be restored for hearing on merits under Rule 107 (2).
After the Respondents’ Counsels complained that they were not served with the Application subject matter of the scheduling conference, the Court decided that the Conduct of the Applicant in filing an Application but failing to serve other Parties (the Respondents) except the Republic of Uganda (6th Respondent) and also failing to appear personally or by his advocate at the scheduling conference, amounts to further abuse of the court process.
In addition, the Court said that regarding costs, although it does not ordinarily award costs to the parson litigating in the Public Interest, the repeated abuse of the Court process by the Applicant in this matter, impels it to exercise its discretion otherwise.
In conclusion, the Court said that it “desires to put a stop to any other possible abuse of its process in this matter, by directing that no further Application relating to this matter shall be entertained at the Registry.”
Counsels representing the Respondents in court were Mr Nestor Kayobera Senior States Attorney for 1st Respondent (Republic of Burundi), Kepha Onyiso, Senior Principal State Counsel for 2nd Respondent (Republic of Kenya), Nicholas Ntarugera, Senior State Attorney for 3rd Respondent (Republic of Rwanda), Mark Mulwambo and David Kakwaya, Principal State Attorneys both for the 5th Respondent (United Republic of Tanzania), Elisha Bafirawala, Principal State Attorney with Ms Gorretti Arinitwe, State Attorney and Cheptoris Sylivia, Senior State Attorney all for the 6th Respondent (Republic of Uganda) and Brenda Ntihinyurwa, Legal Expert representing the Secretary General of the East African Community (7th Respondent).
The Ruling was delivered by Honourable Justices: Dr Emmanuel Ugirashebuja (President of the Court), Liboire Nkurunziza (Vice-President), Justice Edward Rutakangwa, Aaron Ringera and Geoffrey Kiryabwire.
Notes for editors:
- (2) Where an appeal has been so dismissed under sub rule (1) of this Rule or any cross-appeal has been allowed, the appellant may apply to the Appellate Division to restore the appeal for hearing or to re-hear the cross-appeal, if he can show that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing.
1 .(2) Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
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About the East African Court of Justice:
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.
Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The Court’s sub-registries are located in the respective National Courts in the Partner States.