BANQUE POPULAIRE DU RWANDA ATLAS MARA PLC V. NKUSI

BANQUE POPULAIRE DU RWANDA ATLAS MARA PLC V. NKUSI

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2020-11-27 - Case/document no.: RS/INJUST/RCOM 0000/2020/ SC - Collection: Supreme Court

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BANQUE POPULAIRE DU RWANDA ATLAS MARA PLC V.

NKUSI [Rwanda Supreme Court- RS/INJUST/RCOM 0000/2020/ SC (Nyirinkwaya., P.J., Cyanzayire, Muhumuza and Rukundakuvuga, J.) 27 November 2020] Review of a judgment on grounds of being vitiated by injustice –Party to the case that is under review on the grounds of injustice-related grounds – A person who was not iniatially admitted to be a party in a case that is requested to be reviewed on the grounds of injustice cannot be a party during the review unless the refusal to be a party is the alleged ground of injustice. Review of a judgment on grounds of being vitiated by injustice – Reviewing a case on grounds of injustice based on the inadmissibility of the second appeal by the court – Hearing of the case on merits – When a case tried on the merits is appealed and not admitted on the second appeal, the court that is seized with the motion to review it due to injustice first examine the reasons as to why the second appeal was rejected, and it can only further hear it on merits when it finds that the previous court erred in not rejecting the appeal. Commercial procedure – Admissibility of appeal filed by a litigant who intervened into the case at the appeal level – A litigant who was forced to intervened in a case at the appeal level, can be allowed to appeal if the court ordered costs against her/ her. Facts: Nkusi Evariste seized the Commercial Court of Nyarugenge requesting the

Court to order to BPR ATLAS MARA Ltd to pay him the amount mentioned on the cheques that SGES/ATT had drawn to him, the Bank refused to give him the money and it did not provide any related justification. The Court ordered BPR ATLAS MARA Plc to pay all the amount mentioned on the cheques in addition to related damages. BPR ATLAS MARA Plc was not satisfied with the decision and appealed against the ruling before the Commercial High Court, where it stated that the previous Court disregarded the elements of evidence it produced and it did not summon the cheque drawer to intervene in the case. SGES/ATT Ltd voluntarily intervened in the case. The Commercial High Court heard the case and decided that the appeal filed by BPR ATLAS MARA Ltd is not grounded and the Bank had no genuine reasons for refusing to pay the cheques without defect and legally drawn. The intervention of SGES/ATT was not admitted. BPR ATLAS MARA Plc together with SGES/ATT appealed against the above ruling to the Court of Appeal. They stated that the lower courts have deliberately declined to examine the elements of evidence produced, and they also added that the Commercial High Court has even refused to hear from SGES/ATT which had thereby intervened and wanted to give some clarifications on the matter. The Court of Appeal did not admit the appeal filed by BPR ATLAS MARA, it held that the appellant has lost the

very case in lower courts for the same reasons and it did not rule about the appeal lodged by SGES/ATT Ltd. BPR ATLAS MARA Ltd applied for the review of the judgment on grounds of being vitiated by injustice and the review was granted. It challenged the judgment rendered by the Court of Appeal which did not admit its second appeal by disregarding that it did not lose on the issue concerning SGES/ATT intervention in the lower courts and which was tried for the first time in the

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Commercial High Court, it disregarded that SGES/ATT Ltd had lodged an appeal which it considered as the first one. Nkusi Evariste states that BPR ATLAS MARA PLc is not a victim of injustice because, since the institution of proceedings, it kept arguing that it had valid reasons for refusing to pay the cheques without providing any justification. Concerning the request of SGES/ATT Ltd, Nkusi argues that it cannot be a litigant at the level of the review of the judgment vitiated by injustice as it has never been a party to the concerned cases, and even when it requested to intervene into the case, the request was not admitted. Held 1. A person who has initially been denied to be a party to a case for review on grounds of injustice cannot be a party to it when it is under review unless the claimed injustice is based on such denial.

2. When a case tried on the merits is appealed and not admitted on the second appeal, the court that is seized for a related claim seeking the judgment review has to first analyse the reasons as to why the second appeal was not admitted, it examines the reasons of the appeal inadmissibility, it examines the merits of such a case only if it finds that the lower court erred on such inadmissibility of the appeal.

3. No one shall invoke and bring forth issues raised for the first time at the appeal level and claim that he/she has not lost the case for the same reasons. Losing a case for the same reasons is examined based on the grounds for which a party filed an appeal, the decisions taken on those grounds, and the motivation of both courts.

4. A person who intervened at the appeal level is entitled to lodge an appeal, only if he/she was fined. The application for review of the judgment lacks merit. Statutes and statutory referred to: Law No 30/2018 of 02/06/2018 determining the jurisdictions of courts, articles 63,52, paragraph 3; Law No 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, article 111; Law No 32/2009 of 18/11/2009 governing negotiable instruments, article 110; Rwanda Central Bank regulations no 04/2013 of 27/08/2013 relating to cheques electronic transactions, article 4 Cases referred to: RS/REV/INJUST/CIV 0023/16/CS rendered by the Supreme Court with Rutayihura et al. v. Mukamabano Charlotte, paragraph 28; RS/INJUST/RCOM 00002/2020/SC rendered by the Supreme Court with Road Solution Pavement Products v. Mailco Ltd, paragraph 24. Judgment

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I. BACKGROUND OF THE CASE

The case started from the Commercial Court, Nkusi Evariste requested the Court to order BPR ATLAS MARA Plc to pay him 335,330,393 Frw, alleging that the Bank has deliberately declined to pay the cheques legally drawn he got from its client SGES/ATT Ltd for the payment of services delivered on basis of the contract related to the fuel consumed on credit, the rent of office and parking. He also requested 67,066,078 Frw as case-related damages

In the judgment RCOM 01401/2018/TC rendered on 26/07/2018, the Commercial Court held that BPR ATLAS MARA Plc ought to pay to Nkusi Evariste a sum of 335,330,390 Frw indicated on all unpaid cheques deposited to it for payment, plus 61,359,470 Frw. In so deciding, the Court relied on the following grounds : a. The fact that BPR ATLAS MARA Plc refused to pay the cheque which is a clear and unconditional order ; b. The fact that the Bank failed to provide defects or legally acceptable grounds to be considered as valid for not paying the cheques legally drawn by authorized person c. The fact that nobody has opposed the cheque payment.

BPR ATLAS MARA Plc was not satisfied with the ruling and it lodged an appeal against it to the Commercial High Court and requested the Court for SGES/ATT Ltd intervention in the case. On 31/01/2019 the seized Court heard the case RCOMA 00583/2018/HCC, it declared inadmissible the SGES/ATT Ltd forced intervention and ungrounded the appeal filed by BPR ATLAS MARA Plc. The Court held that the appealed judgment is sustained and BPR ATLAS MARA Plc should pay to Nkusi Evariste at appeal level the sum of 31,089,261 Frw as compensation for pecuniary loss and 1,000,000 Rwf for the lawyer’s fee.

The Court’s motivation was based on the following grounds :  With regard to SGES/ATT Ltd intervention, the Court found that it is not related to the dispute between Nkusi Evariste and BPR ATLAS MARA Ltd, as the dispute does not result from the contract between SGES/ATT Ltd and BPR ATLAS MARA Plc. The Court found that the dispute is based on the laws that govern negotiable instruments, therefore SGES/ATT Ltd has nothing to either lose or win in this case.  With regard to the appeal grounds of BPR ATLA MARA Plc, the Court explained that it did not indicate any concern related to legally acceptable defects of the cheques that SGES/ATT Ltd had drawn to Nkusi Evariste; therefore, it should apply the laws that govern negotiable instruments and pay the cheques.

BPR ATLAS MARA Plc was not satisfied with the ruling and appealed against the judgment before the Court of Appeal. The appeal was registered as RCOMAA 00031/2019/CA. The Bank stated that the Commercial High Court disregarded the laws and the elements of evidence it produced and that it ordered it to pay 335,330,390 Frw and the compensation for pecuniary loss amounting to 31, 089,261 Frw in addition to 61,359,470 Frw ordered by the Commercial Court.

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SGES/ATT Ltd has as well appealed against the decision of the Commercial High Court which did not admit its intervention and considered it as a witness. Following its claim against the decision of the court registrar who did not register its appeal, the President of the Court of Appeal ordered to register the appeal of SGES/ ATT Ltd and thus it was combined with that of BPR ATLAS MARA Plc and they were registered as RCOMAA 00051/2019/CA.

On 06/03/2020, the Court of Appeal heard the case RCOMAA 00031/2019/CA and it heard about the objection on the lack of jurisdiction raised by Nkusi Evariste based on the fact that BPR ATLAS MARA Plc has lost the very case before both the previous courts for the same reasons. The Court held that the objection is founded, it decided that the claim of Nkusi Evariste for the procedural fee has merit, it ruled that the appeal filed by BPR ATLAS MARA Plc does not fall in the jurisdiction of the Court of Appeal as BPR ATLAS MARA Plc lost in the two lower courts for the same reasons.

With regard to the appeal filed by SGES/ATT Ltd, the Court of Appeal held that its intervention, in this case, is not a main issue.

BPR ATLAS MARA Plc petitioned the President of the Supreme Court and requested him to examine the injustice in the judgment RCOMAA 00031/2019/CA rendered by the Court of Appeal on 06/03/2020 and by the decision n0 260/CJ/2020 of 18/05/2020, he ordered that the case be re-adjudicated for injustice-related grounds, and the case was then registered as RS/INJUST/RCOM 00005/2020/SC.

The case was called on 09/11/2020, BPR ATLAS MARA Plc appeared represented by Counsel Mugire Rwamfizi Joseph together with Counsel Bugingo Jean Bosco and Counsel Uwamahoro Marie Grace, Nkusi Evariste was represented by Counsel Twiringiyemungu Joseph while SGES/ATT Ltd was represented by Counsel Nzirabatinyi Fidèle. Before hearing the case on its merits, the Court raised the issue of determining whether SGES/ATT is a party in this case.

Counsel Nzirabatinyi Fidèle argues that SGES/ATT is a party, in this case, following the request of BPR ATLAS MARA Plc for its intervention before the Commercial High Court, but it appeared in the quality of the witness. He stated that it appealed against the ruling before the Court of Appeal, but the issue of the quality of SGES/ATT was not examined because the appeal filed by BPR ATLAS MARA Plc was not admitted. Counsel Nzirabatinyi Fidèle submits that SGES/ATT Ltd would like to stand as a witness in this case since it has any grievance.

The legal counsel to BPR ATLAS MARA Plc argue that SGES/ATT Ltd was a litigant before the Commercial High Court, but the judge erred by changing its quality while it has liability in this case and the Court of Appeal decided on this issue in a manner causing injustice since it disregarded the fact that the litigants have changed and it held that SGES/ATT Ltd intervention is not a main issue so that the Court can decide on it while it was subject of appeal; for these reasons, it applied for the review of the judgment on the grounds of injustice.

Counsel Twiringiyemungu Joseph who represents Nkusi Evariste argued that the Commercial High Court found that it could not qualify as party a person who would not lose nor win in the case and it considered SGES/ATT Ltd as a witness ; before the Court of Appeal,

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SGES/ATT Ltd indicated that it could not appeal because the ruling of the Commercial High Court did not affect it.

After hearing all parties on the issue of determining whether SGES/ATT Ltd is a litigant in this case, the Court decide on the bench as follows : “It finds that BPR ATLAS MARA Plc appealed the ruling of the Commercial High Court before the Court of Appeal, but its appeal was not examined because the Court of Appeal held that it lacks jurisdiction to hear such case. For those grounds, the Court finds that SGES/ATT Ltd cannot be considered a party because it was never allowed to be a party in this case1. The Court finds that the statements of BPR ATLAS MARA Plc that the grounds of injustice include the fact that the Court of Appeal did not examine whether SGES/ATT Ltd was a party in the case, can be analyzed if this Court finds that the Court of Appeal withdrew itself of the jurisdiction while it has it”.

The hearing continued, and the Court first examined the objection raised about the determination of the case subject to review on grounds of injustice.

Counsel Twiringiyemungu Joseph argues that the procedure used by BPR ATLAS MARA Plc to apply for the judgment review is not correct because it challenges the ruling of the Commercial High Court even if it applies for the review of the judgment rendered by the Court of Appeal. He explains that the ruling that prompted BPR ATLAS MARA to petition the President of the Supreme Court praying to him for the review of the judgment vitiated by injustice is the judgment RCOMAA 00031/2019/CA rendered by the Court of Appeal on 06/03/2020, where it stated that the Court wronged it when it held that it lacks jurisdiction to hear the case since it lost the case before the lower courts for the same reasons. However, in explaining the injustice, it challenged the judgment rendered by the Commercial High Court while it is not the case for which it sought review, and it did not provide any explanation about the judgment for which it sought review on the grounds of injustice.

The legal counsel to BPR ATLAS MARA Plc submitted that the Bank requested the review of the judgment rendered by the Court of Appeal following the appeal against the judgment decided by the Commercial High Court, and it pointed out the injustice suffered in all cases (in the Commercial Court, the Commercial High Court and the Court of Appeal) as it is a hierarchical order. Concerning the statements of Nkusi Evariste who argued that if BPR ATLAS MARA Plc was wronged by the Commercial High Court, it would have petitioned the President of the Court of Appeal, they found that it amounts to the disregard of article 58, paragraph 1 of the law determining the jurisdiction of courts which states that “When a party to the case identifies injustice in his/her case, he/she submits an application to that effect in writing to the President of the court immediately higher than the one having tried the case at last instance, for him/her to examine the alleged injustice.”

After hearing all the parties on the issue of determining the case subject to review on the grounds of injustice and the related issues to be analysed, the Court held as follows: “The Court found that, as it is the position it indicated2, when a case tried on the merits is appealed and not

1 Article 63 of the law that determining the Jurisdiction of Courts denotes that the parties entitled to plead in the case under review on grounds of injustice are those who had been parties to the case for review. 2 See case RS/REV/INJUST/CIV 0023/16/CS of 27/09/2019 Rutabayihu et al. vs Mukamabano Charlotte, paragraph 28. In that case the Court ruled that “… it is obvious that a case likely to be subject to review on grounds of injustice

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admitted; the court seized for injustice based for the appeal inadmissibility examines the application on the grounds for which the court did not admit the second appeal, it can hear the case on the merits if it finds that by declaring inadmissible the second appeal, the court erred. Therefore, the Court finds that it has to first examine the defects that may be in je judgment RCOMAA 00031/2019/CA rendered by the Court of Appeal which did not admit the appeal.

The same position was held during the hearing. The legal counsel to BPR ATLAS MARA Plc indicated that the Court of Appeal disregarded that it did not lose at the first and second levels for the same reasons because, at the second level, the parties and the subject matter changed, as SGES/ATT Ltd had intervened in the case and there was a claim against it which was examined at the first level and also the fact that SGES/ATT Ltd had as well filed an appeal would be a ground for hearing the case on the merits.

Counsel Twiringiyemungu Joseph who assists Nkusi Evariste disagrees with the Bank’s legal counsel on that issue since he finds that the subject matter filed by Nkusi Evariste has never changed, and BPR ATLAS MARA Plc lost the case before both courts : the Commercial Court and the Commercial High Court.

The Court closed the hearing on that issue, and the Court notified the parties that, before the hearing continuation, it shall decide on it. The Court asked litigants if anyone has to make an additional statement about the claimed damages, and both parties replied that they have nothing else to add.

The Court finds that the legal issues to be analysed are the following : a. Determine whether the Court of Appeal erred by declaring inadmissible the second appeal filed by BPR ATLAS MARA Plc b. Issues related to the damages claimed by both parties. II. ANALYSIS OF THE LEGAL ISSUES OF THE CASE 1. Determine whether the Court of Appeal erred by declaring inadmissible the second appeal filed by BPR ATLAS MARA Plc

The legal counsel to BPR ATLAS MARA Plc argues that the Court of Appeal disregarded the fact that it requested for SGES/ATT Ltd intervention in the case tried by the Commercial High Court for being held accountable for its liability, but the Court qualified it as a witness, and SGES/ATT Ltd had appealed against such issue, the appeal was registered as RCOMAA 00051/2019/CA which was later combined with the application for the review on grounds of injustice. They further state that the issue related to SGES/ATT Ltd intervention in the case has never been litigated before the Commercial Court as it was only examined for the first time before the Commercial High Court. Therefore, they note that BPR ATLAS MARA Plc has not lost the case twice for the same reasons because the subject matters in the lower courts are different and even the litigants were not the same in both Courts. The legal counsel of BPR ATLAS MARA Plc sustain that, even if on the first level the Court held that BPR ATLAS MARA Plc should pay the

is a case in which unfair decision was taken against a party. In other words, a case which was not admitted can be considered as unfair in case the injustice is based on its inadmissibility”.

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cheques deposited by SGES/ATT Ltd for the payment of Nkusi Evariste, and the Court of the second level held the same position, the Commercial High Court took a new decision that SGES/ATT Ltd is not a party ; and due to this decision, BPR ATLAS MARA Plc lost the case.

Counsel Twiringiyemungu Joseph who represents Nkusi Evariste does not agree with BPR ATLAS MARA Plc on the above issue. He argue that the party who filed the claim explains his/her allegations. Nkusi Evariste lodged a claim and explained its contents, meaning the failure to be paid the cheques gotten from SGES/ATT Ltd while these cheques were legally drawn. It lost on this issue in both Courts. He also added that the intervention of SGES/ATT Ltd did not change the grounds on which those Courts relied.

DETERMINATION OF THE COURT

The Court finds that the main issue of this case is to determine whether the Court of Appeal erred by refraining from hearing the case on the merits based on the fact that BPR ATLAS MARA Plc lost for the same reasons at the levels of the Commercial Court and the Commercial High Court without taking into account the specific decision taken by the Commercial High Court in relation to SGES/ATT Ltd intervention and without considering SGES/ATT Ltd appeal. For settling this issue, the Court examines whether the ruling on the issue raised by the Court which tried the judgment at the second level can affect the admissibility or inadmissibility of the second appeal based on the fact that the party lost at the levels of both courts for the same reasons. It also has to examine whether the appeal filed by SGES/ATT Ltd would serve as grounds for the hearing of the case on the merits.

2. Determine whether an issue raised at the appeal level can serve as ground to decide that a party has not lost a case for the same grounds

The article 52, paragraph 2 of the Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts provides that “The Court of Appeal has also jurisdiction to try at the second level of appeal cases tried by the High Court, the Commercial High Court and Military High Court. The Court of Appeal has also jurisdiction to try at the second level of appeal cases tried by the High Court, the Commercial High Court and Military High Court” and it thereby highlights the required conditions for the admissibility of such a second appeal. And, the third paragraph of the very article adds that “However, the appeal at second instance cannot be admissible for cases in which parties have admitted charges brought against them or a party who has lost his/her case in both courts for the same reasons”. This Court finds that this is a specific reason for the inadmissibility of the claim even if other requirements for the second appeal admissibility are fulfilled.

In this case, BPR ATLAS MARA Plc does not agree that it lost the case for the same reasons because there are issues related to SGES/ATT Ltd intervention examined and decided by the Commercial High Court and they have not been litigated at the first level. For the sake of defining what is meant by losing a case for the same reasons, in the case RS/INJUST/RCOM 00002/2020/SC3 this Court expounded that “ by examining whether a litigant has lost a case in

3 Case RS/INJUST/RCOM 00002/2020/SC of 25/09/2020 Road Solution Pavement Products v. MAILCO Ltd, paragraph 24

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both lower courts for the same reasons, an attention is drawn to the dispute subject matter, the analysis made by each court in indicating the underlying grounds, for taking the decision, and in determining whether the issues examined in the first instance were reiterated at the appeal level and whether both courts handled them similarly”.

In determining whether the issues examined in the first instance were reiterated at the appeal level, this Court finds that it is necessary to take into account the main connection between the two rulings since it is this connection that must be reflected at the appeal level, and the decision taken at the second level as provided under article 150, paragraphs 5 -7 of the Law relating civil, commercial, labour and administrative procedure4 in explaining those reasons, whereby the losing party at the first instance indicates all the defects on which the decision is taken by the Court at the appellate level following the respondent’s explanations.

Concerning the appeal grounds, when the Court at the second level took a decision similar to the supporting reasons of the ruling and the appellant has again lost the case for the same reasons for which he lost it at the first instance, it is therefore concluded that the appellant has lost the case for the same reasons. In other words, losing a case for the same reasons is examined by analysis of the reasons that made a litigant appeal, the related court’s decision, and the corresponding supporting explanations that lower courts have thereof given. This means that other claims entitled to parties at the appellate level as provided under article 154 of the Law relating to civil, commercial, labour, and administrative procedure, such as interests, rents, and other accessories which were realized since the pronouncement of the judgment and moral damages for the loss suffered from the time the judgment was delivered at the first instance, and claiming the third party intervention, cannot constitute a ground for analysis and determination of whether a litigant has lost a case for the same reasons; therefore, no one can rely on the decisions taken about those issues to insinuate that he/she has not lost the case for the same reasons as those issues were not examined at the first instance; thus, it is not possible to compare those issues in consideration of the judgments delivered at both levels as it is not possible to compare unrelated issues.

In this case, BPR ATLAS MARA Plc requested the intervention of SGES/ATT Ltd at the appellate level, and the Court declared inadmissible such an intervention. As expounded in the precedent paragraph, the Court finds that BPR ATLAS MARA Plc cannot rely on such a decision to submit that it did not lose the case for the same reasons by pretexting that it was not taken in the appealed judgment, it cannot be referred to for determining whether the litigant lost the case for the same reasons as there is no issue to compare with it in the judgment rendered at the first instance.

Based on those explanations, the Court finds baseless the statements of BPR ATLAS MARA Plc which alleges that the Court of Appeal has wronged it by not admitting its second appeal because the issue of SGES/ATT Ltd intervention into the case was not among the issues for which he lost the case for the same reasons.

4 That article provides that: “The application for appeal is done by means of submissions filing the claim and containing…. 5° the list of grievances from the judgement and other issues to be analysed again; 6° the explanation for each grievance or problem indicating the errors committed and the way in which they must be modified on the basis of the law and the means of proof and the claim. 7° the explanation for additional claim if there is any.

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3. Determine whether the fact that SGES/ATT Ltd lodged appeal against the decision on its intervention into the case could be a ground for the Court of Appeal to hear the case on the merits

According to its explanations, in the pleading and the submissions, BPR ATLAS MARA Plc indicated that the Court of Appeal disregarded the fact that SGES/ATT Ltd had as well lodged an appeal, and that could be a ground for the Court of Appeal to hear the case on the merits. By retorting to this issue, the Court finds that it is necessary to examine whether the appeal of SGES/ATT Ltd should be admitted, and the effects on the injustice that BPR ATLAS MARA Plc allegedly suffered.

With regard to the admissibility of the appeal filed by SGES/ATT Ltd, article 116, paragraph 2 of the Law relating to the civil, commercial, labour, and administrative procedure provides that “Even if the case is decided at the last instance, a party is authorized to appeal against a case he/she was summoned to intervene only once when he/she was fined.” As stipulated by this article, a party that has been forced to intervene has a right to an appeal in case he/she was fined. In other words, if such a party is not charged to pay, his/her appeal is inadmissible.

As decided in the judgment rendered by the Commercial High Court, the Court held that SGES/ATT Ltd cannot be a party in the case in which it has no claim or it is not ordered to pay5; rather it was witness in the case, and it is evident that the Court did not charge it anything; and it is therefore clear that it had no right to appeal in this case.

Due to the fact that the Court of Appeal did not decide about the appeal, instead it held that it is not a main issue6, this Court finds that it cannot decide about it as SGES/ATT Ltd did not indicate that it is detrimental to it. The only issue is to determine whether BPR ATLAS MARA Plc can invoke it to request for the judgment review on grounds of injustice.

This Court finds that the inadmissibility of a claim depends on a party whose the claim is not admitted or examined by the court; it is in the discretion of the court to not admit claim/appeal of a litigant and admit the claim/ appeal of another or others. The fact that the Court could have erred about SGES/ATT Ltd does not entitle BPR ATLAS MARA Plc to take it as an issue for which the judgment should be reviewed on grounds of injustice as it does not represent it.

Considering all the provided explanations, this Court finds that BPR ATLAS MARA Plc did not suffer from injustice due to the case RCOMAA 00031/2019/CA rendered by the Court of Appeal, therefore, it cannot examine the injustice alleged in the judgment RCOMA 00583/2018/HCC rendered by the Commercial High Court.

4. Concerning the damages a. Damages for being dragged in unnecessary lawsuits

Counsel Twiringiyemungu Joseph who represents Nkusi Evariste submits that the claim filed by BPR ATLAS MARA Plc is meant for creating confusion and blocking his payment. He,

5 See paragraph 6 of case RCOMA 00583/2018/HCC 6 See paragraph 21 of case RCOMAA 00031/2019/CA

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therefore, prays the Court to order it to pay his client a sum of 10,000,000 Frw for being dragged into unnecessary lawsuits.

The legal counsel of BPR ATLAS MARA Plc state that the Bank has been dragged into unnecessary lawsuits while it did not commit any mistake, but it respected its obligations as required. Therefore, they submit that it cannot be held liable for the payment of such an amount. They sustain that Nkusi Evariste should be held liable because he was provided with explanations why the cheques were not paid.

DETERMINATION OF THE COURT

The Court finds that the damages for being dragged in unnecessary lawsuits claimed by Nkusi Evariste are not grounded because there is no evidence beyond reasonable doubt that BPR ATLAS MARA Plc filed an application for the judgment review on the grounds of injustice knowing that it intended to block NKUSI Evariste payment. b. Lawyer’s fee and procedural fee

Counsel Twiringiyemungu Joseph representing Nkusi Evariste prayed the Court to order to BPR ATLAS MARA Plc to pay to his client a sum of 5,000,000 Frw for the lawyer’s fee and procedural fee.

The legal counsel to BPR ATLAS MARA Plc have as well requested the Supreme Court to order to Nkusi Evariste to pay to the Bank 5,000,000 Frw, a sum that includes 3,000,000 Rwf for the lawyer’s fee, and 2,000,000 Frw for the procedural fee. They so requested with reference to article 26 of the Regulation n0 01/2014 determining the scale of Advocates’ fees in Rwanda7; as well as to the article 111 of 29/04/2018 of the Law relating to civil, commercial, labour and administrative procedure8.

DETERMINATION OF THE COURT

The Court finds that the lawyer’s fee and the procedural fee claimed by BPR ATLAS MARA Plc are baseless because it loses the case. It finds that Nkusi Evariste deserves the lawyer’s fee and the procedural fee because he wins this case, but since he cannot account well for the damages he claimed neither does he provide the related evidence, the Court has, in its discretion awarded him 500,000 Frw for the lawyer’s fee and 300,000 Frw for the procedural fee, the total sum is 800,000 Frw. III. DECISION OF THE COURT

Holds that the application for the review on grounds of the injustice of the judgment RCOMMAA 00031/2019/CA rendered on 06/03/2020 by the Court of Appeal as BPR ATLAS MARA Plc is unfounded.

7 That article provides that “the advocate’s fee shall range between 500,000 Rwf and 5,000,000 Rwf” 8 That article provides that “The claim for representation fees is an incidental claim to the principal claim aiming to repay expenses incurred during judicial proceedings”

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Holds that the judgment RCOMAA 00031/2019/CA rendered by the Court of Appeal on 06/03/2020 is not tainted with injustice.

Holds that the ruling of the judgment RCOMAA 00031/2019/CA rendered by the Court of Appeal on 6/03/2020 is sustained. Orders to BPR ATLAS MARA Plc to pay Nkusi Evariste 800,000 Frw for lawyer’s fee and procedural fee at this instance.