BANI Ltd v. DUSABUMUREMYI

BANI Ltd v. DUSABUMUREMYI

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-11-14 - Case/document no.: RCOM 0009/14/SC - Collection: Supreme Court

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BANI Ltd v. DUSABUMUREMYI [Rwanda SUPREME COURT – RCOM 0009/14/SC ( Kanyange, P.J., Gakwaya and Hitiyaremye, J.) November 14, 2014] Commercial procedure – Admitting the summary procedure claim – The force and the validity of the executable judgment is limited to the subject matter of the case and which got resolved. Though the case was heard in merits and became executable, there is no ground on which the summary procedure claim may not be admitted in case the claim together with the subject matter are not the same which was tried before and got decided. Law n 15/2004 of 12/6/2004 relating ᵒ to the evidence and its production article 106, Law n 21/2012 of 14/6/2012 relating to the civil, ᵒ commercial, labour and administrative procedure article 11, Law n 21/2012 of 14/6/2012 ᵒ relating to the civil, article 316. Commercial procedure – The interest of lodging a claim before the court – Having the interest of lodging a claim does not require to prove its basis – The fact that the plaintiff is also the owner of the house at issue; it proves that he has the interest of lodging a claim. Law n 21/2012 of ᵒ 14/6/2012 relating to the civil, commercial, labour and administrative procedure article 2 in its paragraph 2. Commercial procedure – The summary procedure claim is based on provisionally being relocated from the house – The summary procedure claim has to be based on the urgency

and provisional character – The fact that there is no urgency which may influence in take the provisional decision of being relocated from the house; the summary procedure claim may not be considered, Law n 21/2012 of 14/6/2012 relating to the civil, article 316. ᵒ Facts: Bani Ltd and Dusabumuremyi made a lease contract of a house in which he performed the commercial activities on 700,000 Rwf per month. Dusabumuremyi did not respect the terms of that contract which made Bani Ltd to lodge a claim against him before the Commercial Court requesting him to pay that debt and damages. The court ordered Dusabumuremyi to get relocated from the house and to pay rent and it ordered the provisional execution. Dusabumuremyi appealed before the Commercial High Court which declared the appeal inadmissible since it was lodged after the expiration of period of appeal provided for by the law. During the execution of the judgement, the court bailiff has seized Dusabumuremyi’s properties and sold them in the auction but Musanze Commercial Court annulled that judgment execution since it was performed illegally. The court heard the case and decided that the claim had basis on some grounds and declared that the court bailiff has overruled by relocating Dusabumuremyi Jean Claude from of the house while it was not decided like that in the decision ordering the provisional execution. The court ordered

that DUSABUMUREMYI Jean Claude be taken back in the house and be paid the damages amounting to 1,000,000 Rwf since what he claimed were excessive. Dusabumuremyi appealed before the Supreme Court, and Bani Ltd lodged an urgent application requesting the court to order Dusabumuremyi to be relocated from the house since he does not perform his obligations of paying the rent. In the course of the hearing of the case Dusabumuremyi raised an objection of not admitting the urgent application of Bani Ltd, and the court decided to analyze the objection together with the summary procedure claim.

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The Counsel of Dusabumuremyi says that that objection was based on “ the authority of res judicata” since the judgment decided by Musanze Commercial Court has become executable and it decided that Dusabumuremyi be given back the commercial house he leased from Bani Ltd, thus he realizes that Bani has no right of claiming against the judgment which was decided. The one pleading on behalf of Bani Ltd also argues that there has been no judgment which became executable which ordered that he takes the house for no payment. The counsel for Dusabumuremyi says that Bani Ltd has no interests of lodging the urgent claim and that the claim does not fulfill the requirements as being urgent and provisional while the claim has to be based on them, thus he realizes that the claim would have no basis. The counsel on behalf of Bani Ltd says that it has interest of lodging a claim as soon as Dusabumuremyi does not pay the rent. With regard to the damages claimed by Dusabumuremyi for having been unnecessary involved in the court proceedings, the one counsel on his behalf says that the court ordered Bani Ltd to restitute the procedural fees to Dusabumuremyi, and it requests to be restituted the money it spent. Held: 1. Requesting the inadmissibility of the summary procedure claim on the ground that what is requested has been finally decided , it has not to be considered since it is not in accordance of what is provided for by the law and the arguments of the eminent lawyers.

2. The interest of lodging a claim has to be personal to the plaintiff to the case and it has to be direct, thus the necessary is that the court realizes that the party lodging the claim has the particular right on what he claims.

3. The fact that that the report of the commission of the hygiene demonstrated that the accommodation rooms were in bad condition due to the bad smell which was therein and the humidity which was on the walls and uncleanness of the toilet and no water therein, and in case BANI Ltd does not prove its serious suspicion that the house will continue to get seriously damaged, its summary procedure claim has not to be considered since it has no urgency. Objections raised by the defendant has no merit. The summary procedure claim lodged by the plaintiff has no merit. The court fees to the plaintiff. Statutes and Statutory instruments referred to: Law n 15/2004 of 12/6/2004 relating to the evidence and its production article 106, Law n ᵒ ᵒ 21/2012 of 14/6/2012 relating to the civil, commercial, labour and administrative procedure article 11, the law n 21/2012 of 14/6/2012 relating to the civil, article 316. ᵒ No Cases referred to:

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Judgment I. BRIEF BACKGROUND OF THE CASE [1]

The case started in Musanze Commercial Court, BANI Ltd accusing DUSABUMUREMYI Jean Claude that in March 2012 they concluded lease contract of a house for commercial activities on 700,000 Rwf per month, but he did not pay, which is the ground on which it requests to be paid the damages as mentioned in the claim. [2] On 17/07/2013, that court decided on the judgment RCOM 0144/13/TC/Mus and declare that the claim of BANI Ltd has basis, it ordered that the lease contract concluded between BANI Ltd and DUSABUMUREMYI Jean Claude be dissolved, it ordered DUSABUMUREMYI Jean Claude to get out of the house of BENI Ltd, it ordered him to pay to BANI Ltd 4,900,000 Rwf for rent, 686,000 Rwf for interests, 400,000 Rwf for the advocate’s fees and 150,000 Rwf for the procedural fees and it ordered the provisional execution on 4,900,000 Rwf. [3] On 19/07/2013 DUSABUMUREMYI Jean Claude was not satisfied with the decision of that judgment, he appealed against it before the Commercial High Court. On 22/11/2013, that court decided on the judgment RCOM A 0301/13/HCC, and it decided the appeal not admissible since it was lodged after the expiration of period of appeal provided for by the law. [4] The file shows that on 06/08/2013, the Court Bailiff RUCYAHANIRA Rubondo Manassé, has executed the judgment RCOM 0144/13/TC/MUS, he auctioned the properties of DUSABUMUREMYI Jean Claude he has seized.

DUSABUMUREMYI Jean Claude and UWILINGIYIMANA Hyacinthe lodged a claim against the Court Bailiff RUCYAHANIRA Rubondo Manassé and BANI Ltd before Musanze Commercial Court which annulled the judgment execution of 06/08/2013 since it was effected illegally DUSABUMUREMYI Jean Claude alleging it to have been effected while he has already paid 4,900,000 Rwf on 19/07/2012, through the agreement with BAVUKIYEHE Eugene, the Director of BANI Ltd and that he has appealed against that judgment. While UWILINGIYIMANA Hyacinthe explained that the court bailiff has seized her properties and auctioned them while she was the sub-lessee, she had no relation with the judgment to be executed. [5] On 12/11/2013, that court tried the judgment RCOM 0358/1/TC/MUS, and decided that DUSABUMUREMYI Jean Claude’s claim had basis on some grounds since the court bailiff has provisionally executed that judgment and overruled it by taking DUSABUMUREMYI Jean Claude out of the house while it was not decided like that in the decision ordering the provisional execution, it ordered that DUSABUMUREMYI Jean Claude be taken back in the house of BANI Ltd he leased and continues to perform his activities as soon as no other decision except those decided in the judgment RCOM 0144/13/TC/MUS, It decided that DUSABUMUREMYI Jean Claude be given 1,000,000 Rwf for the damages he claimed from RUCYAHANIRA RUBONDO Manassé since what he claimed were an excess, and that UWILINGIYIMANA Hyacinthe had to be provided with no damages since the court realized that the court bailiff did nothing on her properties and even in the course of trial she failed to prove that she does not cohabitate with DUSABUMUREMYI Jean Claude as husband and wife even if nothing proves that they are legally married.

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[6] On 28/11/2013 DUSABUMUREMYI Jean Claude was not satisfied with the decision of the judgment RCOMA 0301/13/HCC, and appealed before the Supreme Court. [7] On 01/11/2014, BANI Ltd lodged an urgent application requesting the court to order DUSABUMUREMYI Jean Claude to be taken out of the house since he does not perform his obligations of paying the rent of the house in which he carries out his commercial activities and allow the owner of the house to repair it since it was damaged. [8] The judgment was tried in public on 11/11/2014, BANI Ltd represented by BAVUKIYEHE Eugene assisted by Me NTIHEMUKA Albert while DUSABUMUREMYI Jean Claude was represented by Me KARAKE Canisius. In that trial, DUSABUMUREMYI Jean Claude raised an incident of not admitting the urgent application of BANI Ltd, the court decided to analyze together the incident and the urgent application. II. ANALYSIS OF LEGAL ISSUES A. To know whether the incident raised by DUSABUMUREMYI Jean Claude has to be considered. I. With regard to what BANI Ltd requests in its urgent application was resolved in another judgment finally decided. (authority of res judicata) [9] Me KARAKE Canisius says that that incident was based on “the authority of res judicata” since after that BANI Ltd has forcedly taken DUSABUMUREMYI Jean Claude out of the house, there has been the judgment RCOM0358/13/TC/MUS decided by Musanze Commercial

Court on 12/11/2013, which become executable, it decide that DUSABUMUREMYI Jean Claude be given back the commercial house he leased from BANI Ltd, he realizes that DUSABUMUREMYI Jean Claude has right of continuing to perform his business activities until the courts finally take a decision on the lease contract. [10] Me KARAKE Canisius explains that it is “the authority of res judicata” since BANI Ltd did not appealed against that judgment and even the continuous contract as that of lease of the commercial house, BANI Ltd does not show new activities it claims to have been existed after that judgment, it does not prove the months not paid after DUSABUMUREMYI Jean Claude was taken back in the house, thus he realizes that it is BANI Ltd which has no right to claim against the decided judgment. [11] Me NTIHEMUKA Albert argues that there has been no judgment which became executable which decided that DUSABUMUREMYI Jean Claude takes the house for no payment and even from the time he entered the house he did not pay. He explains that BANI Ltd waited the judgment to be decided however in that waiting DUSABUMUREMYI Jean Claude did not pay the rent anymore. View of the Court [12] The article 106 of the Law 15/2004 of 12/06/2004 relating to the evidence and its production provides for that “The authority of a final judgment extends only to the subject matter

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of the judgment. It is necessary that the subject matter of the case be the same, that action be based on the same grounds, that the action be pending between the same parties and that the action be brought by or against the same parties in their original names”. [13] The article 11 of the Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure provides for that “a case that was definitively decided and of which the possibility to be reviewed due to a decision tainted with injustice is exhausted cannot be summoned again for the same facts and between the same parties pleading the same subject matter”. [14] The Supreme Court realizes that in the judgment RCOM 0358/13/TC/MUS raised by DUSABUMUREMYI Jean Claude, the plaintiffs were DUSABUMUREMYI Jean Claude and UWILINGIYIMANA Hyacinthe while the defendants were RUCYAHANIRA RUBONDO Manassé and BANI Ltd while in this case; the plaintiff is BANI Ltd while the defendant is DUSABUMUREMYI Jean-Claude. It realises even the principle subject matter in the judgment RCOM 0358/13/TC/MUS is the settlement of the disputes that arose from the execution of the judgment RCOM 0144/13/TC/MUS of 17/07/2013.which was between BANI Ltd and DUSABUMUREMYI Jean Claude and annul the act of the court bailiff RUCYAHANIRA RUBONDO Manassé, while the subject matter in this case is requesting the Supreme Court

that DUSABUMUREMYI Jean Claude be provisionally taken out of the house of BANI Ltd since he does not perform his obligations of paying the rent of the commercial house in which he performs his activities and so that the owner of the house repairs it since it was damaged. [15] In reference to the article 106 of the Law N° 15/2004 of 12/06/2004 of the law mentioned above and article 11 of the Law N° 21/2012 of 14/06/2012 Law relating to the civil, commercial, labour and administrative procedure as mentioned above, the Supreme Court realizes incase the judgment RCOM 0358/13/TC/MUS became executable since it cannot be appealed against basing on the article 208 of the Law 21/2012 of 14/06/2012 mentioned above1 and in the judgment RCOM 0009/14/CS, the parties, the subject matter of the case when they are not the same, the incident of inadmissibility of the urgent application of BANI Ltd on the ground that what it requests in the judgment RCOM 0009/14/CS was finally decided by the judgment RCOM 0358/13/TC/MUS has not to be considered since it does not correspond to what have been said by the eminent lawyers2. [16] Due to these grounds, the Supreme Court realizes the incident raised by DUSABUMUREMYI Jean-Claude to have no basis. 1 Article 208 of the Law No 21/2012 of 14/06/2012 Law relating to the civil, commercial, labour and administrative procedure provides that Disputes regarding

the execution of judgment shall be brought before the court that rendered the final judgment or that made a foreign judgment enforceable in Rwanda. 2 “It is the rule called triple identity: parties, subject matter of the case and cause which leads to wonder, to determine whether the new claim has the relation with the subject matter already decided on, whether it is between the concerned parties, of the same claim, which refer to the required elements (identity of the subject matter and of the cause) for the jurisdiction of the court”. Loïc Cadet, droit judiciaire privé, deuxième édition, Litec, Paris, 1988, P. 622

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ii. With regard to the incident of that BAN Ltd has no interest of lodging an urgent claim. [17] Me KARAKE Canisius says that BANI Ltd had no legal right in its claim, since from the time DUSABUMUREMYI Jean-Claude was given back the house on 31/03/2014, the rent was paid until July 2014, thus it has not to request to be paid the rent after that time since the house was not used after being closed by the administration on 16/07/2014 due to the fact of uncleanness resulting from the construction of the house. He says that the ground of repairing the house because it was damaged which was raised by BANI Ltd, it is late in reference to the letter written to it on 24/09/2014, it did nothing which made DUSABUMUREMYI Jean-Claude to do it accordingly with what is mentioned in letter, and even it was not finished, repairing the house does not mean that the one who performs his activities therein has always to get out of it even requested the court, that it depends on the gravity of the works which has to be executed and it has to be agreed between the contractors, but the fact that the works requested by the administration were finished to be performed by that administration which has closed it, BANI Ltd cannot request to perform what has been finished to be done, which is the ground that it has no interests in this claim except if it wants to hide itself behind what it requests the

court to chase again DUSABUMUREMYI Jean-Claude from the house illegally as it learned nothing from the decision of the court mentioned above. [18] Me NTIHEMUKA Albert says that BANI Ltd has interest of lodging a claim as soon as DUSABUMUREMYI Jean-Claude does not pay the rent. He says again that the fact that the leased house spent four months out of use due to the problems of uncleanness, BANI Ltd has the interests of requesting to get back its house. View of the Court [19] The article 2, paragraph one of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure provides for that “a claim cannot be accepted in court unless the plaintiff has the status, interest and capacity to bring the suit”. [20] The Supreme Court realizes that the interests said in the article 2, paragraph one of the Law N° 21/2012 of 14/06/2012 mentioned above it is the interest of seizing the court or of lodging a claim. [21] The Supreme Court realized that the interest of lodging a claim has to be personal to the party to the case and it has to be direct, thus the necessary is that the court realizes that the party lodging the claim has the particular right on the claim3. [22] The Supreme Court realizes that in this case BANI Ltd has personal right of lodging an urgent claim since it is the owner of the house of the case, and what is said by 3 “The interest has to be personal and direct. It is in this case that to lodge an urgent application, it is not sufficient for an association to invoke one interest the circumstance that it has the subjective right make a recourse, it has in this case prove that the recourse is based on the personal subjective right”. Pierre Marchal, les référés, Larcier, Bruxelles, 1992, P. 82

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DUSABUMUREMYI Jean Claude that it has no interest of requesting that he be chased from the claimed house, it has no basis since the explanations he gives that he has done all that it claims from him, it cannot be considered since it is related to the case in merits. And even to have interest of lodging a claim does not require first proving its basis4. [23] Due to those grounds, the Supreme Court realizes the incident raised by DUSABUMUREMYI Jean Claude baseless. B. Knowing whether DUSABUMUREMYI Jean Claude may be taken out of the house. [24] Me NTIHEMUKA Albert argues that the fact that BANI Ltd requests the court in its urgent application that DUSABUMUREMYI Jean-Claude be removed from the house it is because he does not perform his obligations of paying the rent of the commercial house in which he performs his activities and to allow the owner of the house repairs it since it was damaged. He explains that the judgment RCOM 0144/13/TC/MUS, the court decided that the contract of 07/07/2012 be dissolved due to non-payment of the rent, it decided that DUSABUMUREMYI Jean-Claude gets out from the house of BANI Ltd, but instead of getting out of the house he continued to appeal until the Supreme Court, while in the execution of the judgment RCOM 0358/13/TC/MUS of 31/03/2013, DUSABUMUREMYI Jean-Claude has agreed to pay the rent not later than 10th of each month, which he did not

respect. [25] Me NTIHEMUKA Albert says that incase DUSABUMUREMYI Jean-Claude goes on not paying the rent of the house while it is the primary obligation in the execution of the contract and in case he goes on not repairing the damaged house and violating the right of BANI Ltd of repairing it, he realizes that these problems particularly that of repairing that house, may lead to its destruction at the extent that BANI Ltd may get inconsiderable loss. [26] Me NTIHEMUKA Albert says again that the proof showing that the house was damaged, is that the owner has got in and realizes all there problems, and get informed that the administration has realized them and that DUSABUMUREMYI Jean-Claude admit that that house was damaged, thus it realizes all these constitute the ground on which the court may base to order that the house to be taken back to BANI Ltd for not continuing to lose its value, and get bankrupt. [27] BAVUKIYEHE Eugene says that they lodged a claim requesting him to pay and he agrees to pay each month, and that they gave him a clean house, he could have cleaned it. He says that they lodged an urgent application since it was four months without paying (from August), and again he has seriously damaged it as the administration also has realized it since it closed it because it realized the uncleanness even though he lies that the house was not stopped to be used, instead

he leased it to other people. [28] Me KARAKE Canisius says that the urgent application has no basis since it does not fulfill the requirements of the article 316 of the Law N° 21/2012 of 14/06/2012 to the civil, commercial, labour and administrative procedure that those absent requirements are the urgency 4 “The interest of lodging a claim does not require first proving the basis of the claim”, Civ. 1re,, 17 mai 1993 :Bull. civ. I, n 169, in Nouveau code de procédure civile, mégacode, Dalloz, 1999, P. 80. ᵒ

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and provisional on which the urgent application has to be based. He says again that the fact that the case started being the claim of removing DUSABUMUREMYI Jean-Claude from the house, there was no urgency, and no provisional character on which the decision may be taken that ordering him to get out or that decision waited from the principle lawsuit which is not accepted by the article 316 of the Law N° 21/2012 of 14/06/2012 mentioned above since in case such a decision is taken it may make the principle lawsuit lose it basis. [29] Me KARAKE Canisius continues saying that the arguments of BANI Ltd are right since DUSABUMUREMYI Jean-Claude was given back the house by the court bailiff when he executed the decision of the court of 31/03/2014, that he was given the house without the materials which were therein before forcedly taking him out of it, but it did not prevent him from paying the rent of April, May, June and July of 2014, where he paid 700,000 Rwf each month, which does not correspond to the reality since saying that DUSABUMUREMYI Jean-Claude did not pay the rent since from the time he was given back the house no month he did not pay except the days it was closed by the administration for the ground of uncleanness which was not the result of DUSABUMUREMYI Jean-Claude’s faults, it instead resulted from the construction defect and to water which was closed due to the debts

of used water by BANI Ltd when it has taken back that house. View of the Court [30] The article 316 of the Law N° 21/2012 of 14/06/2012 to the civil, commercial, labour and administrative procedure provides for that “When there is need to have an interim ruling on a matter which requires urgent resolution, an action shall be filed in accordance with the ordinary procedure regarding principal suits, before an urgent applications judge in the jussssrisdiction where the urgent measure is required in accordance with ordinary summons procedure”. [31] Basing on the provisions of the article 316 of the above mentioned law, the Supreme Court realizes even though it is evident in the paragraph 52 of the judgment RCOM 0144/13/TC/MUS that BANI Ltd requested that DUSABUMUREMYI Jean-Claude be removed out of the house since it was damaged and he does not pay the rent, it has shown no proof of urgency influencing the court to take the provisional decision, it is evident that in this case that DUSABUMUREMYI Jean-Claude continued to pay the rent until in July of 2014 and even after the report of the hygiene commission of 14/07/2014, that house was closed by the administration on 16/07/2014 on the uncleanness reason. [32] With regard to the damage of the house, the Supreme Court realizes instead that the report of the commission of the hygiene demonstrated that the sleeping rooms were in bad condition due to the bad smell which was therein and the humidity which was on the walls and uncleanness of the toilet and no water therein, thus in case BANI Ltd does not prove its serious

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suspicion that the house will continue to get seriously damaged5, its claim has not to be considered, there is no urgency in it. [33] Due to those grounds, the Supreme Court realizes no ground which may influence it to provisionally decide that DUSABUMUREMYI Jean-Claude get out of the house he leased from BANI Ltd. C. Knowing whether DUSABUMUREMYI Jean-Claude may be provided with the compensations he requests. [34] Me KARAKE Canisius requests the court that, due to the unnecessary involvement in the court proceedings, it orders BANI Ltd to restitute DUSABUMUREMYI Jean-Claude 500,000 Rwf he has paid for the advocate for the urgent application and 100,000 Rwf for the procedural fees which makes in total 600,000 Rwf. [35] Me NTIHEMUKA Albert says that the money that DUSABUMUREMYI Jean-Claude claims, will be analyzed in the case in merits except if the court gets otherwise and BANI Ltd requests to be restituted the money it spent. View of the Court [36] The article 258 of the third book of the civil code provides for that “any act of an individual which causes damage to another person requires the person who caused damage to repair it”. [37] The Supreme Court realizes basing on the article 258 of the third book of the civil code, DUSABUMUREMYI Jean-Claude has to be given 300,000 Rwf for the advocate’s fees and 100,000 Rwf for the procedural fees which makes 400,000 Rwf. 5 “There is

the urgency from when the fear of prejudice of a certain gravity, such as serious inconvenient, influences the immediate decision and that the urgent application is made in case the ordinary procedure become ineffective to resolve the problem on the needed time, which leaves the judges of the urgent application the big room for appreciation for the just measure, the great liberty”, Cass. 21/5/1987 in Pierre Marchal, les référés, Larcier, Bruxelles, 1992, P. 82

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III. THE DECISION OF THE COURT [38] It decides that the incident raised by DUSABUMUREMYI Jean-Claude has no merit. [39] It decides that the urgent application lodged by BANI Ltd has no merit. [40] It orders BANI Ltd to provide to DUSABUMUREMYI Jean-Claude 300,000 Rwf for the honorary fees for the advocate and 100,000 Rwf for the procedural fees which makes in total 400,000 Rwf. [41] It orders BANI Ltd to pay the court fees.