Dialogue Across the Atlantic: selected case-law of the European and . www. teshimaryokan.info Note the list of Law Reports on the left – includes South. African, English and Canadian case law. Tick the box for Law. Reports. NOTE: The same case can be . This document provides an overview of the case law of the Court of Justice of the European. Union (“CJEU”) with regard to the application of Framework.
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Case law. Last updated: June teshimaryokan.info Case law refers to the judicial decisions of the courts. When a case is published, it is known as a law. PDF | This piece covers a brief history of judgments. CASE LAW DIGEST: Jan to May, Manjeet Kumar Sahu. The Government. When citing this publication, please acknowledge the source “Overview of the Court's case-law from 1 January to 15 June ”.
The legislation that was in place before the Organic Law No. Being unsatisfied by such a decision, he appealed before the High court Kigali. Gasarasi C. A copy, photocopy, or other reproduction which has been certified in conformity the original, is always valid until it is disapproved by other evidence. To compensate them, the Government will give them land and assist them to resettle".
The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes, so that, in some cases, it is somewhat difficult to apply previous decisions to the facts presented in future cases. Some pluralist systems, such as Scots law in Scotland and so-called civil law jurisdictions in Quebec and Louisiana , do not precisely fit into the dual "common-civil" law system classifications.
Such systems may have been heavily influenced by the Anglo-American common law tradition; however, their substantive law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as "mixed" systems of law. Law professors in common law traditions play a much smaller role in developing case law than professors in civil law traditions.
Because court decisions in civil law traditions are brief and not amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called doctrine and may be published in treatises or in journals such as Recueil Dalloz in France.
Historically, common law courts relied little on legal scholarship; thus, at the turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision except perhaps for the academic writings of prominent judges such as Coke and Blackstone.
Today academic writers are often cited in legal argument and decisions as persuasive authority ; often, they are cited when judges are attempting to implement reasoning that other courts have not yet adopted, or when the judge believes the academic's restatement of the law is more compelling than can be found in precedent.
Thus common law systems are adopting one of the approaches long common in civil law jurisdictions. Judges may refer to various types of persuasive authority to reach a decision in a case. Some bodies are given statutory powers to issue Guidance with persuasive authority or similar statutory effect, such as the Highway Code.
In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved and it may be necessary to distinguish how the law is applied in one district , province, division or appellate department. Usually only an appeal accepted by the court of last resort will resolve such differences and, for many reasons, such appeals are often not granted.
Any court may seek to distinguish its present case from that of a binding precedent, in order to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal. An appellate court may also propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case may distinguish them on the facts. Where there are several members of a court, there may be one or more judgments given; only the ratio decidendi of the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in argument.
Quite apart from the rules of precedent, the weight actually given to any reported judgment may depend on the reputation of both the reporter and the judges. The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from the civil law tradition. In fact, the court did not considered by the fact of possessing duplicate of the certificate issued by Commune Rwamiko.
Rather it entered in details by understanding witnesses, making site inspections with local authorities to come up with concise decision of the subject matter. The plaintiff is a spouse of Rwabukombe. She filed a case before the Primary court of Ruhango requesting the land that they left in after fleeing the country. The primary court ruled against her request and the latter filed the appeal before the Intermediate court of Ruhango.
Legal question to be solved before the court was to see if evidences presented by the plaintiff were not considered. After that, they also mention how the Primary court rejected evidences that they presented including the testimonies from witnesses and her request of sharing the land with the defendants, where Manjwe has accepted but others refused. On the part of the defendants: Musonera Venuste, Hagabiyaremye Innocent, et. In rending the decision therefore, the intermediate court referred to the law of evidences and the law relating to civil, commercial, labour and administrative procedure.
Failure to do The law relating to evidence and its production, O. Therefore, saying that they have left their land without any deed or testimony that may be referred to prove it, does not induce the court. It is clear that the first has restituted the lost ownership rights whereas in the second case, the plaintiff remains losing them, fault of lack of evidences as provided by laws. For that reason, as it has been demonstrated in the above cases under this section, evidences in proprietary land rights remained questionable.
Laws are clear, but it is challenge how two persons, with similar cases get different court decisions. To that, there should be a consistence built on case laws, so that persons could not be abruptly deprived of their ownership rights. The following section talks about evidences in proprietary land rights as per the organic law on the use and management of land, with related analysed case law. It came into force to address a number of questions like the very high density of population and pressure on land, excessive partitioning of family agricultural plots, soil degradation and loss, scarcity of land and a large number of landless, negative consequences of war and genocide, bad agricultural practices and overgrazing, the predominance of customary law and inadequacy of written land law, lack of a viable and efficient cadastral system, the inadequacy of human, material and financial resources On the other point, matter of evidences in proprietary land rights also remained in question; to the extent that land related matters, specifically in evidences provided by the owners still remain unaddressed.
Even the process of land registration and issuance of land titles that come after the organic law in , also did not come up with a concise and clear solution to matters of evidence over land.
Below, is detailed the way lands were registered and how titles were issued. Eventually, the idea of land registration has come when customary law was no longer able to cope with new conditions where land boundaries have become imperative, where permanent crops have replaced seasonal ones, where credit is required on the scarcity of land, where in fact individual proprietary rights have arisen and land has acquired a negotiable value.
Cit, p. During the process of land registration, Land Officers were appointed to keep land registers and issue certificates approving ownership of land. This universal registration provided land users with more certain rights and thereby impacted on the promotion D. Ruzirampuhwe, Land ownership rights under Rwandan law: It is a dispute between Gashugi and a Wife of Munyambo Ildefonse. The latter repatriated finding the former settled in his land which he acquired from the administrative and competent authorities in legal and cumulative procedures.
It is clear that, though land registration policy was put in place, there are still gaps that are not regulated and which causes inconsistencies before courts while deciding on the real owner of the land. It applies the emphyteutic lease as well as the freehold or any other form of land tenure legally provided for.
It can also include information about mortgages, covenants, caveats and easements Along the procedure of land registration and issuance of land titles, there has been some Challenges including: Unclaimed land people outside Rwanda , Children born out of marriage and orphans, Inheritance, Widowed women, Land registration on Islands and in Gishwati, Former Natural Forest, Low collection of lease titles, Lease fees claimed to be high.
This process has been done and in order to implement the national land policy and the organic law determining the use and management of land in Rwanda. Land registration, as stipulated in the article 30 of the organic law determining the use and management of land in Rwanda is D.
Law and E. Martin, A Dictionary of law, 7th ed. Definitely, the registration and issuance of the lease title guarantee rights to a land parcel. The following step is to find out a property certificate issued by the sector in which the land is located to ensure that the land owner has not any disputes.
After, person who wishes to register pay registration fees as recommended by the Ministerial instructions related to fees paid for systematic land registration.
Through the District especially in its land bureau office in which the land is located, you can get the number of your parcel.
After these steps are fulfilled, the land lease title is prepared and issued by the Deputy Registrar of Land Titles of the region in which the land is located. This instrument was used during the process of land registration while collecting data especially on boundaries lands.
After the issuance of the deed, The Certificate of Registration on the Register of Titles is full evidence for the right of ownership, empyteutic lease or real rights or encumbrances real charges that are specified on it. The right of ownership which is recorded thereon cannot be challenged, even though the Certificate was drawn on basis of a cancellable or invalid contract of alienation, or a court order obtained by surprise.
Causes of rescission or invalidity of the contract or the mistakes of the order only gives rise to a cause of personal action for damages. Experiences with land registration and titling schemes have shown that well informed, powerful and usually educated individuals often compete successfully for land not previously registered to their own names, while the mass of rural poor are generally unaware of the law or do not grasp the implications of land registration.
In this case, as it was before the Supreme Court case to be discussed, people should be granted rights over their properties.
Camilla and J. Quan, Op. The revision was mainly transform the Organic land Law into ordinary law in order to comply with the provisions of the Constitution of the Republic of Rwanda.
However, it does not respond to the issue of evidences in land related matters that was still under question before courts of law. Judgments were rendered basing on proofs provided by parties to the case, but there is lack of conformity in decisions of courts on the basis of their decisions. The object of the litigation is The land located in Nengo village, Nengo cell, Gisenyi sector, Rubavu district, western province.
In , she fled the country due to hostilities that were taking place in the country. Before the primary court of Jomba Gisenyi , she requested to recover her land but the case was rejected, that her claim has no legal basis. The legal question in the case was to determine if the non provision of each part of the land occupied by each of the defendant could lead to the loss of the case and assessment of produced evidences.
The applicable law on this matter was the law on use and management of land in Rwanda. At the appeal level, the court has referred to the above laws law on land, law of evidence and its production, the law relating to civil, commercial, labour and administrative procedure. And that only the court can assesses the relevance, pertinence and admissibility or rejection of testimonial evidence.
For the appellant, the court decides that, since the land was for the family of SETAKO Ephreum, it should be returned to her as a spouse entitled with the powers of using the family patrimony.
It declared all the land titles of the three defendants null since they have acquired them in fraudulent way. The court was not biased by the fact of possessing land titles, which are deemed irrefragable proofs of ownership over land. Rather it entered in details; understanding witnesses, making site inspections with local authorities to come up with concise decision of the subject matter. The next section focuses and detailed the analysis given to the Supreme Court case of The decision of the Supreme Court are not be subject to appeal save in terms of petitions for the exercise of the prerogative of mercy or revision of a judicial decision.
Its decisions are binding on all parties concerned whether such are organs of the State, public officials, civilians, military, judicial officers or private individuals. Case law is and always has been a respected and vital part of constitutional jurisprudence. Vertical stare decisis requires lower courts to follow the precedents of higher courts when faced with indistinguishable facts. It is a case on land ownership related matters where both parties to the case claimed their ownership rights over the same land.
Details are discussed below: The object of the litigation is the plot of land located in Kamutwa cell, Kacyiru Sector, Gasabo district, City of Kigali. In , they fled the country and left their properties including plot of land located in Kamutwa cell, Kacyiru Sector, Gasabo district, City of Kigali.
This was issued after the allocation of this plot of land to his father who has left it to him and the certificate of Land Titles issued by the office of registrar of Land Titles. Being unsatisfied by such a decision, he appealed before the High court Kigali. The applicable law on this matter was the organic law on use and management of land in Rwanda. Its article 5 provides the way of obtaining land in Rwanda: Other laws that were applied to the case are: The motivation was based on laws relating to land the decree of , the law governing land, the ministerial order determining modalities of land registration, the presidential order determining the powers of the registrar of land titles , evidences produce by both parties, and other relevant techniques site inquiries used by the court to come up to the decision.
Under those elements, the following are identified: This evidence was issued during the transitional period of when a number of refugees of the Genocide perpetrated against Tutsi were repatriating. Under this period, the government of Rwanda allocated lands to people for temporal use. He argued that, since he possesses the land title, he is the real owner since an authentic deed is one, which has been drawn or received in accordance with all the required formalities, by a public officer authorised to officiate in the place where the deed was drawn.
He also based his argument on the the fact that the Certificate of Registration on the Register of Titles is full evidence for the right of ownership, empyteutic lease or real rights or encumbrances real charges that are specified on it. As discussed from the hierarchy of laws that regulated land related matters from up to the new law of , courts decisions were rendered.
However, the way that they considered the powers and legality of evidences produced by parties to cases manifests a form of contradiction regarding what is provided for by laws. Under the Rwandan context, issues related to nullity of land titles may create complexity while declaring the cancellation such deeds.
The ministerial order determining modalities of land registration stipulates the conclusiveness of land certificate. On the other hand, the presidential order determining the functioning and powers of the land registrar provide the person organ who bears the powers to cancel a certificate of land registration in legally provided procedures.
Those powers are subdivided into those of the council of registrars of land titles and those exercised by the Chief registrar and registrar of land titles. On the side of those exercised by the council of registrars of land titles, there are: By the point of view, as the registrar has the powers to sign, certify The ministerial order on land registration in Rwanda, O.
Land is a fundamental resource of the nation state. Without land, without territory, there can be no nation state. Hence, land is seen as one of the most important and fundamental natural resource that is exploited by people to get their daily living means. Its exploitation and use depend on how laws, rules, regulations and policies of a given state are built.
For the Rwandan point of view, a number of legislations were passed from the arrival of colonisers up to now. All were meant to regulate land related matters. Apart from a few scattered land regulations, Rwanda had never had a proper land policy nor had it ever had a land law, a situation that enhanced the duality between the very restrictive written law and the widely practiced customary law, giving rise to insecurity, instability and precariousness of land tenure.
On one hand, there was the customary law, which governed almost all the rural land and promoted the excessive parceling out of plots through the successive father-to-son inheritance system. And on the other, there was the written law, which mostly governed land in urban districts and some rural lands managed by churches and other natural and legal persons. The coming into force of all those decrees, laws, rules, regulations and policies does not give clear solutions to evidences in land related matters in Rwanda.
In the course of Rwandan history, evidences to land were: Certificates of ownership issued by communes, Agreement of temporal allocation issued in accordance with the Ministerial order on temporal management of Lands, the Contrat de location issued in as well as land certificates issued in accordance with the Ministerial order determining the modalities of land registration.
The applicability of the law relating to evidence and its application, the law on civil, commercial, labour and administrative procedure also impacted on the decision making of courts. Several courts only considered the land title authentic deed as the full evidence of ownership rights which cannot be opposed in any way. The origin of land in question as well as the legality of produced evidences.
However, given the way the court has decided, the powers to nullify the land certificate by the court is also questionable in all analysed cases. Therefore, there should be a clear and common understanding between court rulings on the powers conferred to registrars of land titles to cancel land certificates. Some fled the country in different periods of their history, they left behind their property; land inclusive. At their repatriation, they sometimes found them occupied by others and started proceedings of recovery of their ownership rights.
Indeed, they should examine the way those titles were obtained and their legality. In settling land related disputes, Courts should consider all presented evidences. Thus, courts should take reference to Supreme Court case law to build a consistent case law that should serve in settling all land related disputes especially in matters of evidences while proving the ownership rights.
As an alternative, there should be a harmonisation laws and court decisions to overcome stipulated contradictions Land law, law of evidence, Civil, commercial, labour and administrative procedure. Such harmonisation will serve as the process of creating common standards between courts decisions and the provisions of the law.
Decree of 31 July relating to property as modified to date B. Decree of and published in B. The decree of 11 July, relating to land, B.
O, , p. International conventions The Universal Declaration of Human Rights, hereinafter: UDHR ICCPR Books Schabas W. Haller M. Michelle G. Rurangwa E. Hodgson S. Toulmin C. Gasarasi C. Some bodies are given statutory powers to issue Guidance with persuasive authority or similar statutory effect, such as the Highway Code.
In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved and it may be necessary to distinguish how the law is applied in one district , province, division or appellate department.
Usually only an appeal accepted by the court of last resort will resolve such differences and, for many reasons, such appeals are often not granted. Any court may seek to distinguish its present case from that of a binding precedent, in order to reach a different conclusion.
The validity of such a distinction may or may not be accepted on appeal. An appellate court may also propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case may distinguish them on the facts.
Where there are several members of a court, there may be one or more judgments given; only the ratio decidendi of the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in argument.
Quite apart from the rules of precedent, the weight actually given to any reported judgment may depend on the reputation of both the reporter and the judges.
The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from the civil law tradition. In Sweden , for instance, case law arguably plays a more important role than in some of the Continental civil law systems. From Wikipedia, the free encyclopedia. This section may need to be rewritten entirely to comply with Wikipedia's quality standards. You can help.
The discussion page may contain suggestions. December A Dictionary of Modern Legal Usage 2nd, revised ed. New York: Oxford University Press. In modern usage, common law is contrasted with a number of other terms.