eacj procedure

Procedural Justice at the EACJ: Know the way of Court

East African Court of Justice (EACJ) Laws of Procedure series, part II.
Click here to read part I.

There are no legal mysteries in the East African Court of Justice. What ordinarily transpires in a local court is similar to how the East African Court operates. Like previously noted, the Treaty for the Establishment of the East African Community, under Article 42, sets out the rules of engagement that the court employs.

Under its Rules of Procedure, litigation, court hearings, time, service of summons, preparation of documents, legal representation, etc are handled.

  1. Time

Rule 3: Computation of time

To institute a matter before this court, the intending litigant must calculate the time effect. Time is calculated from the moment the event/action which constitutes the suit occurs to the period it ends. Official holidays, weekends and court vacations are inclusive. When the period ends on an official holiday, or weekend, it is extended to a working day.

Rule 4: Extension of time

Some intervening factors like incapacity of litigant, force majeure etc, as per the Registrar’s/court’s discretion may force the Court to extend the time limited by the Rules. The Registrar is mandated to mark the document ‘Lodged out of time’ to inform the person lodging it that the document was lodged after expiry of time and that Court will have this in mind when handling the matter.

  1. Quorum of Court (Rule 5)

Three Judges constitute quorum. Among the three, one judge is the President, another is the Vice President.

Upon application by any party or where the President of the Court requests, the Court may direct that the matter of public importance or complexity in law be heard by a full bench (i.e. all three).

When handling interlocutory matters, a single judge can determine the decision. Instances where a single judge can hear a matter include:

  • Scheduling conference
  • Application for extension of time
  • Application for leave to amend pleadings
  • Application for extension of validity of notification
  • Application for an order for substituted service
  • Application for examining a serving officer

If dissatisfied with the decision of a single judge, the aggrieved party makes an oral application to the judge to have the decision, order or direction varied, discharged or reversed by a full Court. The oral application must be made to the Court at the time the decision/order/direction is made or written to the Registrar seven (7) days later.

Any additional evidence on application is made after ‘leave of Court’ is granted. Otherwise, without new evidence, the full Court will only determine the merits of the application on the available grounds/reasons.

If the judge’s term expires during the procedure, he/she is allowed to hear the matter so as to complete it without much disruption.

THE COURT

  1. The Seat of the Court is determined by the Summit (member countries) or as it thinks fit, at another place convenient for the parties and itself (Rule 6).

The Court is entitled to annual ‘short’ and ‘long’ vacations plus public holidays of the Partner State where its seat is at. The President of the Court determines when they take the vacation and the days are gazetted. No other business is determined by the Court during vacation unless for delivery of judgment and taxation of bills of costs.

The President may direct that a matter be heard during the vacation after an application accompanied by a certificate of urgency is tendered to Court.

  1. The role of Registrars
  • Registrars are responsible for receiving and keeping documents lodged in the Court. They also effect service of these documents on the responsible parties.
  • All documents lodged in the Court are sealed and a record kept in the Court’s custody. It’s the Registrars who handle this.
  • They are also responsible for the administration of the Court, especially its financial procedures.
  • They also supervise sub-registries of the Court in Partner States.

Court Registrars endorse documents lodged in the Court and copies thereof, make entries in the Record of Court and submit documents/files to parties for inspection or duplication where necessary after payment of the appropriate fee.

  1. Documents
  2. a) Preparation of documents (Rule 10)

All documents to be lodged in the Court must be paginated, visible/legible and numbered appropriately in ‘book form’.

NB:

  • The Rules are specific on sums, dates and numerical composition in the documents. They must be in figures and not in words.
  • The tenth line of each page must be indicated on the right hand side of the page.
  • Every pleading must be divided into paragraphs, numbered consecutively, and signed by the maker/his/her advocate or other person entitled to (e.g. Attorney under a Power of Attorney)
  1. b) Rejecting a document

The Registrar may reject a document which does not comply with the above provision or where the intending applicant/litigant has not paid a prescribed fee for the same.

  1. Court appearance and representation (Rule 15)
  • In person
  • Appointed advocate
  • Director, manager/secretary, advocate for the sake of a company,
  • Guardian ad litem, next friend, committee, advocate for a person legally incapacitated to represent himself.

An advocate for a party in this Court must file a certificate proving that he/she is entitled to appear before a superior court of a Partner State while a representative of a party must file any proof of his appointment to act as a representative, even where a litigant dies before the matter is settled.

Changing an advocate is allowed but the change must be lodged with the Registrar, served upon each party for the proceedings to continue smoothly.

  1. Applications (Rule 18)
  • Applications are filed by Notice of Motion.
  • They are supported by affidavits.
  • They are served not less than 7 days before hearing
  1. Affidavits in reply (Rule 19)

Replies to Applications after service of notice of motion are lodged not less than 3 days before hearing of the matter.

  1. Pleadings (Section 3)
  • Must contain all particulars necessary for the claim, defence to be heard
  • All particulars of any misrepresentation, fraud, negligence, breach of trust, willful default or undue influence on which the pleading lies.
  • All annextures relevant to the pleading must be attached and listed on the pleading.

Pleadings in any case are closed 14 days after service of the reply. Where there is no reply, 15 days after service of the response or defence or defence to a counterclaim.

Only with leave of court shall more documents be filed in Court.

Striking out a pleading:

  • A pleading may be struck out or all or part thereof expunged where Court sees that such may: prejudice or delay the fair trial of the matter; is scandalous, frivolous or vexatious; or is an abuse of the process of the Court.
  • An application for striking out or expunging all or part of the pleading must be on concise grounds (Rule 46).

Amendment of pleadings can be made:

  • Without leave (before the close of pleadings). Reply to amend pleading to be made 14 days after service.
  • With consent of all parties or with the consent of the party to be added or substituted,
  • With leave of the Court. This can be done at any stage of the proceeding, in writing, lodged within 14 days of giving of leave.

 

Qn: Can a party withdraw from or discontinue a case?

Yes, it can. Under Rule 50, a party may withdraw or discontinue a claim or counterclaim.

A withdrawal or discontinuance can be made against any or all respondents, or any part of the claim. A respondent may similarly withdraw its counterclaim.

It can be done ‘without leave’ at any time before a date for opening proceedings is fixed. A notice to withdraw or discontinue must be lodged in the registry and a copy served on the other party.

It can also be lodged ‘with leave of the Court’ or with written consent of all parties after a date for opening oral proceedings has been fixed. The rationale is that for proper record, Court has already set itself to hear all matters in the pleading and deviating from any or all requires its discretion to allow withdrawal or discontinuance.

Compromise (Rule 51)

Sometimes parties may compromise on a matter leaving no plausible reason to continue the proceedings. In these circumstances, the parties must file an application notifying Court of the compromise, whether wholly or partially and the Court thereafter records the compromise and enters judgment.

THE TRIAL

  • Scheduling Conference at pre-trial stage:

Before a trial commences, a scheduling conference is held to ascertain points of agreement and disagreement; mediatory or alternative dispute resolutions, evidence and how it will be furnished, whether or not legal arguments will be written or presented orally or both and the estimated duration of the matter should it go to actual trial.

  • Oral proceedings

If parties settle their dispute before trial, the Court records the settlement order and it will end the matter. Where the matter proceeds to trial, the Court will fix a date for hearing, i.e. oral proceedings.

Under Rule 54, the Court endeavours to fix the date within 6months from the close of pleadings unless it allows an extension. The Registrar issues a notice of hearing stating the date on which it will take place. The notice is served on all parties and the case will be heard then.

  • Witnesses

Witnesses are summoned.

The summons indicate the Court issuing it, the case/matter at hand, the parties, the time of hearing and the requirement that the witness’ account is needed.

When Court, on its own motion, summons a witness, the summons must be honored. In most jurisdictions, this is called a subpoena. Failure to do so amounts to contempt and is punishable by law.

The party that summons a witness must cater for his/her expenses, including court filing fees.

  • Open Court

All proceedings of the Court are held in open Court, i.e. public arena.

There are exceptional circumstances where the Court may allow proceedings to be held in camera. The proceedings, however, are not published.

  • Non-attendance (Rule 59)

Because Courts have numerous matters to attend to, ‘jumping’ Court appearance without a viable reason or Court’s permission is detrimental. Court may dismiss the claim or application or order according to the gravity of the matter and the number of times a party skips attendance.

If the claimant or applicant does not appear, Court will dismiss the case and hear the counter claim, if any. Where the counterclaim or application is dismissed, and the applicant for its restoration is disallowed no fresh claim, counter claim or application may be brought upon the same cause of action. (Rule 59.2 or 3)

Conclusion

When you have audience in a Court, procedural matters should not be hindrances once you have grasped the way of the legal corridors. The East African jurisprudence, luckily, is similar in many ways, so much so that once you have knowledge of the local courts; you will definitely thrive in the regional house of justice. Given the present East African spirit and re-connection, knowing where and how to seek justice in a competent court having authority over all member countries might save you a lot of trouble, inconvenience and money.

BY ATUHAIRWE AGRACE

This article appears in our digital law magazine, The Deuteronomy Vol 3, Issue 3 of March 17th, 2017

To receive The Deuteronomy in real time, click HERE

 

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