BAMURANGE v. EQUITY BANK RWANDA Ltd

BAMURANGE v. EQUITY BANK RWANDA Ltd

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-03-03 - Case/document no.: RCOMA 0550/14/HCC - Collection: Commercial High Court

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BAMURANGE v. EQUITY BANK RWANDA Ltd [Rwanda COMMERCIAL HIGH COURT – RCOMA 0550/14/HCC (Rwanyindo P.J., ) March 03, 2015] The law regulating commercial procedure –The court fees deposit –The objection for not admitting the claim –Depositing the court fees which exceeds the one which is required – It may not be the ground for not admitting the claim because it is an error. The law regulating commercial procedure –The evidence revealed for the first time in the appeal instance –It may be admitted and be examined since it is considered as the new evidence not heard in the first instance - The Law relating to the civil, commercial, labour and administrative procedure, article 168 paragraph 3. The law governing the evidence –The letter requesting for the extension of the period to pay the arrears –The evidence of the short message –The evidence of a short message may not be considered in case it is contradicted by the letter that the sender has handed to the bank requesting to extend the period for payment for her and she did not perform its content. The law governing the contracts – Paying the debt –Not respecting the deadlines provided for in the contract make the guaranty give be sold –It may not be considered as to pay the debt before the period for payment. The law governing the evidence – The calculation of the debt – Nowhere the debtor may base criticizing how the bank has got

it in case she does not reveal evidences. The law governing the contract or the contractual obligations – The damages – They are not provided in case the claimant does not prove the fault on which they are base and the link between that fault and those damages. The law governing the contract and the contractual obligations – The procedural damages and the lawyer’s fees – They are not provided for the party which involved itself within the court proceedings for no ground. The law governing the commercial procedure –The interests on the loans claimed in the appeal – The interests claimed from the time the judgment is rendered are added to the loan decided in the first instance. Facts: EQUITY BANK RWANDA Ltd has given the loan to Bamurange Jeanette and Rwigema Ildephonse the loan amounting to 56,000,000 Frw which has to be paid within the period of ten years, and gave their house for guaranty. After failing to pay that debt EQUITY BANK has sold that house in the auction on 17,300,000 Frw. In the covering the balance of the debt and its interests EQUITY BANK RWANDA Ltd sued Bamurange and Rwigema before Nyarugenge Commercial Court claiming to be paid. The court decided that Bamurange and Rwigema have to pay to EQUITY the money amounting to 44,765,412 Frw and 500,000 Frw for the procedural and lawyer’s fees. Bamurange appealed saying that Nyarugenge Commercial Court ignored the evidence she has revealed of that she was granted by EQUITY to pay that debt in delay due to the unpredicted

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event of sickness which made her fail to pay. She goes on saying that she does not admit the amount of the debt that the court condemned her to pay since the bank cannot demonstrate how the debt is calculated, and she also said that debt was not due for payment and claimed for the damages. Bamurange went on requesting that the claim of EQUITY may not be admitted since the slip for the payment of the court fees demonstrates that it has paid 75,000 Frw instead of being 50,000 Frw. EQUITY BANK RWANDA Ltd argues saying it does not agree with Bamurange for her to pay in delay moreover that she did not base on it during the hearing. It also said within a lot of letters it reminded Bamurange to pay she did not criticise the amount of the debt she was requested to pay. With regard to the debt which was not due, EQUITY BANK RWANDA Ltd said that she failed to cover the arrears as it has written to it. It concluded saying that its claim may be admitted since its error on the amount of the court fees deposit was corrected. EQUITY BANK RWANDA Ltd has also lodged a cross appeal claiming to be paid the interests on the debt decided by the previous court and claims the procedural and lawyer’s fees Held: 1. Deposit the court fees which exceed those which have to be paid cannot constitute the ground for not admitting the claim since it is an error which is different from the fact that no court fees were deposited. Thus the objection for not admitting the claim basing on the court fees is baseless.

2. The evidence revealed for the first time in the appeal instance may be admitted and be examined since it is considered as the new evidence not heard in the first instance. The evidence revealed by the party saying that she was allowed by the bank to pay the debt in delay, it is not considered in case the bank she has written to the bank proves that what she requested and she was granted by the bank is the extension of the period for paying the arrears and she failed to respect it.

3. In case the contract provides for that the borrower has to pay each month, and she did not respect it, she may not base on the fact that she was requested to pay when the debt was not due since she is considered as if she did not respect the contract and makes the guaranty she has given be sold.

4. The debtor who does not denounce how the bank has calculated the debt basing on the evidence which reveals the evidence of how the writer has put in place for him to calculate it, she may base nowhere criticising how the bank has calculated it in case she does not reveal other evidences.

5. The damages are not provided in case the claimant does not prove the fault on which they are base and the link between that fault and those damages. The party which involved itself within the court proceedings for no ground may not be provided with the procedural damages and the lawyer’s fees since it has to incur them. However, the party who wins the case is provided with them.

6. The debt that the court has decided that it has to be paid in the first instance was increased of the interests that were calculated from the time when the judgment was rendered if they are claim in appeal.

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Appeal is baseless. Cross appeal has basis. Judgment RCOM 0723/14/TC/NYGE does not change. Statutes and statutory instruments referred to: Law relating to the civil, commercial, labour and administrative procedure, article 168 paragraph,3. No cases referred to: . Judgment I. BRIEF BACKGROUND OF THE CASE [1] Bamurange Jeannette and Rwigema Ildegard were granted the loan of 56,000,000 Frw by EQUITY BANK RWANDA Ltd within the contract they made on 12/02/2012. They have to pay that loan within ten years on the rate of 15.5% per month; that is to mean that they have to pay 920,700 Frw each month from May 2012. The have given their house which is in the plot number 0581/KIC/NIB for guaranty. [2] Bamurange Jeannette and Rwigema Ildegard failed to pay that debt and made EQUITY BANK RWANDA Ltd auction the guaranty they have given to it on the amount of 17,300,000 Frw but it deducted the amount of money relating to the performance of that auction, and there remained 15,028,007 Frw which was deposited on the account to reduce the debt. [3] Then after EQUITY BANK RWANDA Ltd filed a claim before Nyarugenge Commercial Court for it to claim the payment of the remaining debt amounting to 44,765,412 Frw with its interests. [4] Nyarugenge Commercial Court decided the case and held that Bamurange Jeannette and Rwigema Ildegard have to pay to EQUITY BANK RWANDA Ltd the debt amounting to 44.765.412

Frw, 500.000 Frw for the procedural and lawyer’s fees. [5] Bamurange Jeannette appealed against that judgment on the following grounds: - The fact that the judge has ignored the evidence that they were8 granted to pay in delay due to the ground of giving birth and sickness of Bamurange Jeannette. - Not acknowledging the amount of the debt that the court has condemned her to pay since she does not know how it was calculated. - Not acknowledging the debt claimed which was not due for payment and BAMURANGE Jeannette did not refuse to pay nor fail to pay.

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[6] Bamurange Jeannette claims the damages and the lawyer’s fees amounting to 15,000,000 Frw. [7] Within the hearing Bamurange Jeannette’s lawyer raised an objection saying that the claim of EQUITY BANK RWANDA Ltd has not to be admitted since it has not paid the court fees while the slip for the court fees it has paid mentions 75,000 Frw instead of 50,000 Frw which means that it has used the slip for another file. [8] EQUITY BANK RWANDA Ltd lodged a cross appeal requesting that the debt claimed is increased until the case is decided by the Commercial Court, that’s to mean 47,656,171 Frw instead of being 44,765,412 Frw. It claims also 500,000 Frw for damages for being involved in the court proceedings and 1,500,000 Frw for the lawyer’s fees. [9] The issues to be examined within this case are the following: - To know whether the claim of EQUITY BANK RWANDA Ltd would not have been admitted in the first instance due to that the court fees deposited amounted to 75,000 Frw instead of being 50,000 Frw. - To know whether EQUITY BANK RWANDA Ltd has granted Bamurange Jeannette to pay in delay. - To know whether Bamurange Jeannette is requested to pay the debt that was not due. - To know whether Bamurange Jeannette is requested to pay an excess debt. - To know whether Bamurange Jeannette may be provided with 15,000,000 Frw for the damages, the procedural and lawyer’s fees she claims. - To

know whether EQUITY BANK RWANDA Ltd has to be provided with the interests it claims. - To know whether EQUITY BANK RWANDA Ltd has to be provided with the procedural and the lawyer’s fees it claims. II. ANALYSIS OF THE LEGAL ISSUE To know whether the claim of EQUITY BANK RWANDA Ltd would not have been admitted in the first instance due to that the court fees deposited amounted to 75,000 Frw instead of being 50,000 Frw. [10] Bamurange Jeannette’s lawyer raised an objection saying that the claim of EQUITY BANK RWANDA Ltd has not to be admitted since it has not paid the court fees due to the fact that the slip for the court fees it has paid mentions 75,000 Frw instead of 50,000 Frw which means that it has used the slip for another file.

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[11] EQUITY BANK RWANDA Ltd argues saying that there has been an error to the court but it was corrected at the extent that even on EFS (Electronic filing system) the number of the slip indicates that it is the one on which it has paid the for lodging the claim in the first instance. [12] With regard to this issue, the court realises that nothing proves that that slip is not related with the claim in the first instance except the amount of money mentioned therein amounting to 75,000 Frw instead of being 50,000 Frw. [13] It realises therefore that EQUITY BANK RWANDA Ltd might have mistaken as it says it at the extent that this objection may not be considered, moreover what could be the problem is that no money for the court fees would have been paid but to have paid the excess of what could be paid cannot be a problem. To know whether EQUITY BANK RWANDA Ltd has granted Bamurange Jeannette to pay in delay. [14] Bamurange appealed saying that the Judge in the first instance ignored the evidence she has revealed of that she was hindered by the sickness and giving birth and she explained it to EQUITY BANK RWANDA Ltd and it approved it; while the judge has said that the bank has denied her request which is not true because the Manager of EQUITY BANK RWANDA Ltd, Muhanga Branch has granted it to her by a phone short message (sms). [15] She says again that she has requested that she may

be granted that period for paying that debt due to unpredicted event of sickness, EQUITY BANK RWANDA Ltd has granted it to her and after the time the bank has granted to her she tried to pay 1,540,000 Frw on 11/10/2013, this proves that she has not failed to pay the debt at the extent that her house would be auctioned. [16] EQUITY BANK RWANDA Ltd in its arguments, it says that except that Bamurange Jeannette did not base on that evidence during the hearing as it is within her defense submissions submitted with her advocates who represented her and even within their arguments, what Bamurange Jeannette says has no basis rather it is the way of delaying the case. [17] It says that on 11/07/2013 Bamurange Jeannette was provided with the letter notifying to her of the existing arrears (formal letter demand) and she refused to sign, rather she has immediately sent a letter for requesting the extension for covering the arrears. It says that Rwigema Ildegard asked to the Branch Manager of EQUITY BANK RWANDA Ltd Muhanga Branch whether they may grant them what they have requested for, by forgiving them until 29/07/2013 in that letter on Cote 8, Branch Manager told him that what they have requested for was approved but meanwhile they may sign that formal letter demand, and get considered unless they respect what they committed themselves of covering all the arrears not later

than 29/07/2013. He said that this is mentioned within that short message by phone whose they made a copy but this does not prevent that she signed the formal letter demand by the assistance of the court bailiff on 16/07/2013. [18] EQUITY BANK RWANDA Ltd says that all these proves that no period for paying the debt was extended, rather what the bank has granted her is the period for covering the arrears, and then she failed while she has set for herself the deadline.

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[19] It says that the failure to cover the arrears of May and June not later than 29/07/2013, it made, on 05/08/2013 after the addition of another arrear of July 2013, this made them to write another letter 13/08/2013 to Bamurange Jeannette, on 4th and the notice on 13/09/2013. It says that it proves that Bamurange Jeannette was not granted the period for paying since if she was granted the period to pay, there should be another contract. [20] With regard to that issue, the court realises that the evidence that Bamurange Jeannette claims to have been ignored by the first judge, is the evidence which has been revealed for the first time in appeal, thus she has not to say that the judge has ignored it. [21] It realises therefore, even if it is revealed for the first time in appeal, it may be admitted and be examined because it is provided in the article 168 paragraph 3 of Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure (It is not prohibited to submit in appeal new arguments or elements of evidence that were not heard at the first level). [22] It finds that the evidence that Bamurange Jeanne bases saying that EQUITY BANK RWANDA Ltd has granted her to pay in delay is the message from the mobile phone 0788389079 which she claims it to be for the Branch Manager of EQUITY BANK RWANDA Ltd in Muhanga Branch and the lawyer who

represents it does not disapprove it. [23] It realises that within that short message, it mentions that Bamurange Jeannette’s letter got to the Bank and it was approved, except she has to sign the letter sent to her by the bank, and get considered unless Bamurange Jeannette respects what she has written. [24] It realises that the letter that Branch Manager mentions to have received and approved is the letter that Bamurange Jeannette wrote to the bank on 11/07/2013 where he requested the extension of the period for paying and mentioned that the deadline is the date of 29/07/2013. [25] It realises that Bamurange Jeannette claims to have paid the amount of 1,540,000 Frw on 11/10/2013, thus she did not fail to pay for the bank to auction the guaranty she has given. [26] It realises therefore that Bamurange Jeannette failed to respect what she has requested and agreed it with the bank since what she has requested is to extend the period for paying until 29/07/2013 but she has paid on 11/10/2013 after three months, thus she cannot argue that the bank did not perform what it has promised her within a short message since what it has granted her is to pay the arrears not later than 29/07/2013 as she has requested it in her letter of 11/07/2013 (the motive for that was “requesting to extend the period”) To know whether Bamurange Jeannette is requested to pay the debt that was not due. [27] Bamurange Jeannette appealed saying that the debt she has been sued for was not due, thus she would not have been forced to pay within a short time while she did not refuse to pay nor fail to pay. [28] EQUITY BANK RWANDA Ltd in its arguments says the fact that Bamurange Jeannette failed to cover the arrears of May and June not later than 29/07/2013, it made them to write to

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her another letter on 13/08/2013, on 4th/09/2013 and the notice on 30/09/2013 until the guaranty was auctioned for not paying the debt on 11/03/2014. [29] With regard to that issue, the court finds the fact that Bamurange Jeannette claims that she was requested to pay while it was not due, this is baseless since the reason why Bamurange Jeannette is requested to pay is that she did not pay and got the arrears as she admits herself within the letter of 11/07/2013 where she requested to extend for her the period for paying. [30] It realises that within the article 14 of the loan contract made by both parties on 19/03/2012 states that if the borrower does not pay the loan and its interests as provided within the repayment schedule, the bank may auction the guaranty. [31] It realises that ordinary repayment schedule demonstrates how the borrower has to pay each month, thus if she does not pay one month, she did not respect the contract, and made the guaranty to be auctioned. [32] Due to those grounds therefore, it realises that Bamurange Jeannette was requested to pay when the debt was due, since she did not pay each month as provided within the contract. To know whether Bamurange Jeannette is requested to pay an excess debt [33] Bamurange Jeannette says that she does not admit the amount of the debt that the court condemned her to pay since she does not know how it was calculated.

She says that she paid 6,429,632 Frw, this dividing it with 920,700 Frw of the monthly payment, there was 7 months paid in advance on which she bases saying that the debt was not due moreover that she paid and even after issuing the act for auctioning the guaranty she went on paying. [34] She says therefore, that except saying that she has to pay the debt and its interests amounting to 44,765,412 Frw, the bank cannot demonstrate how the debt is calculated. [35] EQUITY BANK RWANDA Ltd, in its arguments it says that Bamurange Jeannette has to remain within the limits of what she appealed against since in her submissions she said that that judge ignored the evidence proving that the bank has extended for her the time for payment. It says that it wrote to Bamurange Jeannette many letters reminding her to pay and she kept quiet until the time when the guaranty was auctioned, it is to mean that she denounced nothing on the amount of the debt claimed; the substantial proof is that Rwigema Ildegard did not appeal. [36] With regard to that issue, the court really finds that Bamurange Jeannette did not denounce how the debt she was requested to pay was calculated and that she was notified of the amount of the debt within different letters that EQUITY BANK RWANDA Ltd has wrote to her. [37] It realises the fact that Bamurange Jeannette says that the bank has to demonstrate how it has

calculated the debt it claims, it did this since there is a document on Cote 30 of the file in the appeal instance, demonstrates the amount of the debt on 31/01/2014, it demonstrates even the money that BAMURANGE Jeannette has been paying. [38] It realises that if Bamurange Jeannette did not admit the amount of the debt requested to pay, she could have appointed an expert to calculate for her basing on the contract she made with

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EQUITY BANK RWANDA Ltd and other documents made of accounting documents which demonstrate how she has been paying. It realises the fact that she did not do it, and denounces what has been revealed by EQUITY BANK RWANDA Ltd no evidence on which she bases her denunciation, this may not be considered. To know whether Bamurange Jeannette may be provided with 15,000,000 Frw for the damages, the procedural and lawyer’s fees she claims. [39] With regard to the damages that Bamurange Jeannette claims, the court realises that did not prove the fault on which those damages are based and the link between that fault and those damages, thus they are not granted to her. [40] With regard to the procedural and lawyer’s fees that Bamurange Jeannette claims, the court realises that she can’t be provided with them since her grounds for appeal are baseless, it means that she introduced an appeal for no ground, thus she has to incur it. To know whether EQUITY BANK RWANDA Ltd has to be provided with the interests it claims. [41] EQUITY BANK RWANDA Ltd claims to be provided with the interests in addition to the debt decided by the first instance court at the extent that the debt reaches on 47,656,171 Frw. [42] With regard to that issue, the court realises that at the first instance EQUITY BANK RWANDA Ltd filed a claim claiming that the defendants may be condemned to pay the debt and its interests

amounting to 44,765,412 Frw. [43] It realises that in the first instance the case was decided on 30/09/2014 and within the documents that BANK RWANDA Ltd has revealed to this court on 05/09/2014 the debt has reached on 47,656,171 Frw. [44] The court realises that EQUITY BANK RWANDA Ltd has to be provided with those interests as provided for by the article 168 paragraph 2 of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure which provided for that (however, parties may claim interests, rents and other accessories which were realized since the pronouncement of the judgement and moral damages for the loss suffered from the time the judgement was delivered). To know whether EQUITY BANK RWANDA Ltd has to be provided with the procedural and the lawyer’s fees it claims. [45] EQUITY BANK RWANDA Ltd claims 500,000 Frw for procedural damages and 1,500,000 Frw for the lawyer’s fees. [46] With regard to that issue, the court realises that the fact that Bamurange Jeannette loses the case, she has to incur the money spent by EQUITY BANK RWANDA Ltd in following up this can and that in the assistance by an advocate since ordinary this money is paid by the loser of the case.

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[47] It realises therefore, 2,000,000 Frw that EQUITY BANK RWANDA Ltd claims it excessive, and thus it provides it, within it discretionary power, with 1,000,000 Frw for the procedural fees and 500,000 Frw foe the lawyer’s fees. III. DECISION OF THE COURT [48] Decides to admit Bamurange Jeannette’s appeal and declares it baseless. [49] Decides to admit the cross appeal of EQUITY BANK RWANDA Ltd, Decides that it has basis. [50] Decides that no change on the judgment R.COM 0723/14/TC/NYGE rendered on 30/09/2014 by Nyarugenge Commercial Court. [51] Orders that BAMURANGE Jeannette to pay the debt she owes to EQUITY BANK RWANDA Ltd with its interests from the time when the judgment was rendered by Nyarugenge Commercial Court, and now it amounts to 47,656,171 Frw. [52] Orders that her to pay to EQUITY BANK RWANDA Ltd 600,000 Frw for the procedural and lawyer’s fees. [53] States that it was rendered in delay since the judge was on sick leave from 12th /02/2015 until 02/03/2015.