BARAWUMFITIYE v. RWAJEKARE ET.AL

# BARAWUMFITIYE v. RWAJEKARE ET.AL

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-12-20 - Case/document no.: RCA 00014/2023/CA - Collection: Court of Appeal

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BARAWUMFITIYE v. RWAJEKARE ET.AL [ Rwanda COURT OF APPEAL-RCA 00014/2023/CA (Rutazana, M., P.J.) 20 December 2024] Civil procedure – Opposition – Opposition to the judgment rendered at the appeal instance – When an opposition is filed against the judgment rendered at first appeal, in case it is subject to another appeal, this appeal shall be considered as the second appeal because the fact that the defaulting defendant appeals against the judgment rendered by the High Court does not make it the judgment rendered at first instance. Facts: This case started as a third part opposition filed by Rwajekare against Bahizi, Biryukomeye, Babonampoze, Mukankunsi, Barawumfitiye and Nyiranduhirabandi to the judgment RC 3209/29 rendered by the Tribunal of First Instance of Gisenyi which deprived him of his farmlands. Bahizi contended that the case filed by Rwajekare should not be admitted since it was filed beyond the time limits of two months for filing a third party opposition. The co-defendants Barawumfitiye, Nyiranduhirabandi and Mukankusi alleged that Bahizi appropriated himself all the farmlands left by their parents while they should share them. In the judgment RC 00178/2019/TGI/RBV, the Court declared that the claim filed by Rwajekare was not admitted because he had been aware of the judgment by

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the time of rendering the judgments RC 09/98 and C 213/2001 to which Rwajekare was a party as the defendant, and held that he did not comply with the two- months’ time limits to file a third party opposition. Rwajekare appealed against that judgment before the High Court, Chamber of Musanze, and alleged that he got informed of the judgment RC 3209/29 on 08/10/2019 and filed the third party opposition against it on 08/11/2019; therefore, he complied with the period of two months provided by the law for filing the third party. In the judgment RCA 00006/2021/HC/MUS, the Court held that the appeal lodged by Rwajekare lacks merit. Barawumfitiye applied for opposition to the judgment because the case had been heard when she was sick and her application was granted. In the judgment RS/REV/RC 00001/2022/HC/MUS, the High Court, Chamber of Musanze, held that the judgment subject to opposition was sustained. Barawumfitiye appealed against the judgment before the Court of Appeal and alleged that the High Court, Chamber of Musanze rendered the judgments RCA 00006/2021/HC/MUS and RS/REV/RC 00001/2022/HC/MUS on basis of an unsealed judgement copy, and disregarded the element of evidence included in Rwajekare’s defence submissions, proving that the judgement against which he had filed a third party opposition was never heard as it is not found in the court’s archives. Bahizi raised an objection of inadmissibility of the appeal lodged by Barawumfitiye because Rwajekare got

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informed of the judgment against which he filed opposition since he even signed on the copy of the judgment execution as a party to the case and as per his appeal, he pleads on the merits of the case while the claim was not admitted because he delayed to lodge it. All other parties submit that they plead likewise Barawumfitiye because her statements that their brother Bahizi appropriated himself their parents ‘properties while they should share them, are true, they request that her appeal should be admitted. Biryukomeye did not plead in this case. At its own initiative, the Court first examined whether the judgment was subject to third party opposition and thereafter to appeal can be considered as subject to the second appeal; and in the judgment RCA 00014/2023/CA, the Court held that such an appeal can be considered as a second appeal, while it does meet the conditions for being heard on the second appeal because the case was lost in the lower courts for the same grounds. Held 1: When an application for opposition is admitted, the parties remain with their original status in the trial. Therefore, when an opposition is filed against the judgment rendered at first appeal, in case it is subject to another appeal, this appeal shall be considered as the second appeal because the fact that the defaulted defendant appeals against the judgment rendered by the High Court does not make it the judgment rendered at first instance. 2. When examining whether a litigant lost the case before both lower courts for the same grounds, reference is made

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to the subject matter and the legal reasoning to substantiate the underlying grounds that led to the ruling, by determining whether the issues examined at the first instance, are reiterated at the appeal instance, and whether both courts have analysed them in similar ways. Statutes referred to: Law n˚ 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, articles 111, and 1444; Law n˚ 30/2018 of 02/06/2018 determining the jurisdiction of courts, article 52, paragraph 3. Cases referred to: RC/INJUST/RCOM 00002/2020/SC, Road Solution Pavements Product v. Mailco Ltd rendered by the Supreme Court on 25/09/2020; RS/INJUST/RCOM 00003/2020/SC, SANLAM Assurances Générales Plc v. University of Rwanda rendered by the Supreme Court on 27/11/2020; RCOMAA 00012/2022/CA, BUFCOFFEE Ltd v. TEUSCHER INVEST Ltd, which later became KIVU BELT COFFEE Ltd rendered by the Court of Appeal on 22/07/2022, paragraph 17; RCOMAA 00042/2023/CA, RODAS IMPORTER AND DISTRIBUTOR Ltd v. Gasangwa Jean Baptiste et al. rendered by the Supreme Court on 06/11/2023. Judgment

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I. BACKGROUND OF THE CASE

On 08/10/2019, Rwajekare Alexis filed a claim before the Intermediate Court of Rubavu applying for a third party opposition against the judgment 3209/29 rendered by the f Tribunal of First Instance of Gisenyi which deprived him of his farmlands. The defendants were namely Bahizi Frodouard, Biryukomeye Fabien, Babonampoze Marc, Mukankunsi Marie Rose, Barawumfitiye Vestine and Nyiranduhirabandi Béatrice.

Bahizi Frodouard contended that the claim lodged by Rwajekare Alexis should not be admitted since he had filed it beyond the two months’ time limits. Barawumfitiye Vestine, Nyiranduhirabandi Béatrice, and Mukankusi Marie Rose alleged that Bahizi Frodouard appropriated himself the farmlands left by their parents while they should share them.

In the judgment RC00178/2019/ TGI/RBV rendered on 15/12/2020, the Intermediate Court of Rubavu held that the claim filed by Rwajekare Alexis is not admitted because he got informed of the judgment subject to third party opposition by the time of the hearing of other judgments including the judgment RC 09/98 rendered by the Canton Tribunal of Nyamyumba on 25/02/1998 and judgment RC 213/2001 rendered by the Canton Tribunal of Gisenyi City on 09/05/2003 and Rwajekare Alexis was a defendant in those cases. The Court ordered to Rwajekare Alexis to pay to Bahizi Frodouard 500,000 Frw as counsel and procedural fees.

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Rwajekare Alexis appealed against the judgment before the High Court, Chamber of Musanze, stating that he got informed of the judgment on 08/10/2029 and applied for third party opposition on 08/11/2019, therefore, he complied with the two months’ time-limits.

In the judgment RCA00006/2021/HC/MUS rendered on 27/01/2022, the High Court, Chamber of Musanze, held that the appeal of Rwajekare Alexis lacks merit, and ordered to him to pay to Bahizi Frodouard 250,000 Frw as counsel fee at appeal level, in addition to 500,000 Frw for representation and counsel fees he had been ordered to pay to him at the first instance.

On 12/02/2012, Barawumfitiye Vestine applied for opposition against the judgment RCA 00006/2021/HC/MUS; based on the fact that the case was heard when she was sick, and her application got granted. In the judgment RS/REV/RC 00001/2022/HC/MUS rendered on 11/10/2023, the High Court, Chamber of Musanze, held that the judgment RCA 00006/2021/HC/MUS is sustained.

On 10/11/2023, Barawumfitiye Vestine appealed against the judgment before the Court of Appeal alleging that the High Court, Chamber of Musanze, rendered the judgments RCA 00006/2021/HC/MUS and RS/REV/RC 00001/2022/HC/MUS on basis of an unsealed judgement copy, and that the Court disregarded the element of evidence included in Rwajekare’s defense submissions, proving that the judgement subject to third party opposition was never heard as it is not found in the court’s archives.

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In his submissions Bahizi raised an objection of inadmissibility of the appeal lodged by Barawumfitiye because Rwajekare got informed of the judgment against which he filed opposition since he even signed on the copy of the judgment execution as a party to the case and as per his appeal, he pleads on the merits of the case while the claim was not admitted because he delayed to lodge it.

Apart from Biryukomeye Fabien who did not present his defence, the rest of the litigants submitted that they concur with the arguments of Barawumfitiye Vestine, alleging that it is true that Bahizi Frodouard, their own sibling, appropriated himself the properties left by their parents after their death, while they should share it and they requested that her appeal should be admitted.

The case was heard in public on 11/12/2024, Barawumfitiye Vestine being assisted by Counsel Rusobanuka Katisiga Emile, Rwajekare Alexis assisted by Counsel Ndereyimana André, Bahizi Frodouard represented by Counsel Rukarishya Philémon, Babonampoze Marc assisted by Counsel Muhozi Paulin who, at the same time was representing Mukankusi Marie Rose and Nyiranduhirabandi Béatrice while Biryukomeye Fabien did not appear before the Court without providing valid reasons while he had been legally summoned.

Before examining the parties’ submissions, the Court, on its own motion, asked to the parties whether the appeal lodged by Barawumfitiye Vestine originated from the case that started in the Intermediate Court of Rubavu, which is considered as the first appeal or whether it has to be construed as the second appeal before

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this Court and determining whether, in case of the second appeal, it fulfills the conditions that are provided for by article 52 of the Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts in such a way that such an appeal falls within the jurisdiction of this Court. Those were the two issues that were first examined.

Based on the foregoing elucidations, the Court examines whether the appeal by Barawumfitiye Vestine originates from the case that started in the Intermediate Court of Rubavu, falls within the jurisdiction of this Court such that it can be admitted. In case the appeal does not fall within its jurisdiction, the Court shall examine the issue of representation and counsel fees requested for at this level. II. ANALYSIS OF THE LEGAL ISSUES OF THE CASE 1. Determine whether the appeal lodged by Barawumfitiye Vestine originated from the case that started in the Intermediate Court of Rubavu, falls within the jurisdiction of this Court so that it can be admitted

Counsel Rusobanuka Katisiga Emile representing Barawumfitiye Vestine, Counsel Ndereyimana André assisting Rwajekare Alexis, and Counsel Muhozi Paulin assisting Babonampoze Marc, and representing Mukankusi Marie Rose and Nyiranduhirabandi Béatrice, all allege that the appeal filed by Barawumfitiye Vestine falls within the jurisdiction of this Court; because the

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appealed judgment RS/REV/RC 00001/2022/HC/MUS was rendered at its first instance, since before the High Court, Chamber of Musanze, Barawumfitiye Vestine had only applied for opposition to the judgment RCA 00006/2021/HC/MUS. They also allege that had the appealed judgment not have been rendered at the first instance, the Court Registry would not have registered the claim, and the appeal would not have been registered as RCA. Counsel Ndereyimana André also added that the concerned appeal could only be considered as the second appeal, if it emanated from Rwajekare Alexis; while Counsel Muhozi Paulin added that in case the Court finds it otherwise, its jurisdiction will be based on the fact that the value of the litigated farmlands amounts to one hundred twenty million Rwandan francs (120,000,000 Frw).

Counsel Rukarishya Philémon representing Bahizi Frodouard alleges that the appeal filed by Barawumfitiye Vestine is a second appeal because the case started in the Intermediate Court of Rubavu, which later was appealed against before the High Court, Chamber of Musanze; following the judgment pronouncement, Barawumfitiye Vestine applied for opposition against it because the appeal was heard in her absence due to sickness, therefore, her appeal should not be admitted because it is not the appellant status which is considered, rather it is the appealed judgment which is considered since Barawumfitiye Vestine does not substantiate her grounds of appeal based on article 52 of the Law n0 30/2028 of 02/06/2018 determining the jurisdiction of courts.

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DETERMINATION OF THE COURT

The debated issue is to determine whether, in consideration of the case which started in the Intermediate Court of Rubavu, the appeal filed by Barawumfitiye Vestine against the judgment RS/REV/RC 00001/2022/HC/MUS rendered by the High Court, Chamber of Musanze, after the opposition to the judgment RCA 00006/2021/HC/MUS which was rendered in her absence, falls within the jurisdiction of this Court as per the provisions of article 52 of the Law N0 30/2018 of 02/06/2018 determining the jurisdiction of courts.

Article 144, paragraph 2 of the Law n˚ 22/2018 relating to the civil, commercial, labour and administrative procedure provides that when an application for opposition is admitted, the parties remain with their original status in the trial, the claimant remains claimant, and the respondent remains respondent.

Article 52, paragraph 3 of the Law n˚ 30/2018 of 02/06/2018 determining the jurisdiction of courts provides that the second appeal cannot be admitted for a party who lost his/her case before both courts for the same reasons.

The issue of determining whether a litigant lost the case before both previous courts for the same reasons has been examined in various cases1 by the Supreme Court

1 These cases include:

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and the Court of Appeal whereby both courts explained that in determining whether a litigant lost the case before both lower courts for the same grounds, reference is made to the subject matter and the legal reasoning to substantiate the underlying grounds that led to the ruling, by determining whether the issues examined at the first instance, are reiterated at the appeal instance, and whether both courts have analyzed them in similar ways.

The case file indicates that the judgment RS/REV/RC 00001/2022/HC/MUS originates from the claim that Rwajekare Alexis lodged before the Intermediate Court of Rubavu on 08/10/2019 applying for a third party opposition against the judgment RC 3209/29. In its judgment RC 00178/2019/TGI/RBV, the Intermediate Court of Rubavu held that the third party opposition is not admitted and Rwajekare Alexis appealed against the above judgment before the High Court, Chamber of Musanze which held in the judgment RCA 00006/2021/HC/MUS that his appeal lacks merit. Later on, Barawumfitiye Vestine applied for an opposition

- Case RC/INJUST/RCOM 00002/2020/SC with Road Solution Pavements Products v. Mailco Ltd rendered by the Supreme Court on 25/09/2020; - Case RS/INJUST/RCOM 00003/2020/SC with SANLAM Assurance Générales Plc v. University of Rwanda rendered by the Supreme Court on 17/11/2020; - Case RCOMAA 00012/2022/CA with BUFCOFFEE Ltd v. TEUSCHER INVEST Ltd, the later KIVU BELT COFFEE Ltd, (paragraph 17) rendered by the Court of Appeal on 22/07/2022; - Case RCOMAA 00042/2023/CA with RODAS IMPORTER AND DISTRIBUTOR Ltd v. GASANGWA Jean Baptiste et al. rendered by the Court of Appeal on 06/11/2023.

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alleging that the case was heard in her absence due to sickness and her request was granted. The High Court, Chamber of Musanze reheard the merits of case RS/REV/RC 0001/2022/HC/MUS examined in her absence and sustained the judgement RCA 0006/2021/HC/MUS which was subject to opposition ; Barawumfitiye Vestine appealed against the foregoing judgment before the Court of Appeal.

Considering all the elucidations provided in the preceding paragraph, the appeal filed before this Court is the second appeal since the appeal was filed against the judgment rendered by the High Court, Chamber of Musanze, upon appeal lodged by Rwajekare Alexis. The mere fact that Barawumfitiye Vestine applied for opposition against the judgment RCA 00006/2021/HC/MUS rendered by the very Court in her absence, this does not make it a judgment tried on the first instance; rather she requested to the High Court, Chamber of Musanze, to examine on the merits, at the first appeal, the issues examined in the judgment against which she filed application, as per the provisions of the above mentioned article 144. Following her application for opposition, the involved parties remained in their initial status for the judgement subject to opposition whereby Rwajekare Alexis remained appellant while the rest of the litigants and Barawumfitiye Vestine inclusive, remained defendants. It is therefore clear that the hearing that was conducted upon Barawumfitiye Vestine’s application for opposition which later sustained the judgment subject to opposition is as well considered as rendered at first appeal; therefore, the appeal she filed against it before this

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Court is considered as the second appeal and she cannot pretend that for her it is the first appeal she lodged, because the consideration is made to the appealed judgment.

The Court finds that the fact that, at this instance, the appeal was registered as RCA, is not enough to ascertain that the judgment was appealed at the first instance, because, as it was elucidated, the consideration is made to the first instance and appeals.

The Court also finds that in both previous instances, both courts declared that Rwajekare Alexis’ third party opposition was not admitted due to the same reasons; since the Intermediate Court of Rubavu held that he got informed of the judgment subject to the third party opposition when the the judgment RC 09/98 was heard by the Canton Tribunal of Nyamyumba on 25/02/1998 and the judgment RC 213/2001 rendered by the Canton Tribunal of Gisenyi City on 09/05/2003, thus, he did not comply with the two months’ time limits to apply for a third party opposition; and following his appeal before the High Court, Chamber of Musanze, alleging that he had complied with the time limits for third party opposition, and that he got informed of the judgment on 18/10/2019 and filed his third party opposition on 18/11/2019, the appellate Court found that he had learnt of the judgment subject to opposition by the time his parents litigated with Bahizi Frodouard in 2001. Just as the Intermediate Court of Rubavu found it, the appellate Court as well found that he did not observe the legally provided time limits for applying for third party opposition. This Court therefore

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found that the legal reasoning of both previous courts leading to their decision, is similar.

Basing on all the provided elucidations and the provisions of article 52, paragraph 3 of the aforementioned Law n˚ 30/2018, this Court finds that the appeal lodged by Barawumfitiye Vestine is not admitted because it does not fall within the jurisdiction of this Court. b. Determine whether the counsel and procedural fees claimed by the parties are well founded at this level.

Barawumfitiye Vestine requested to the Court of Appeal to order to Bahizi Frodouard to pay her 500,000 Frw as procedural fee. Nyiranduhirabandi Beatrice as well requested to the Court to order to Bahizi Frodouard to pay her 800,000 Frw for having dragged her into lawsuits. Bahizi Froduard did not plead about these damages. DETERMINATION OF THE COURT

Article 111 of the Law n0 22/2028 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure provides that “the claim for court representation is incidental to the principal claim and it aims at repaying the expenses incurred during the judicial proceedings. The claim for legal cost is adjudicated at the same time with the principal claim ; and it can also be admitted and adjudicated even when the principal claim is not admitted”

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The Court finds that it is Barawumfitiye Vestine who filed appeal before this Court and her appeal was not admitted as it has been above explained ; and based on the provisions of the aforementioned article 111, she deserves no refund for the incurred case-related expenses since she is the very person who initiated the lawsuit. The Court also finds that Nyiranduhirabandi Béatrice’s request for the damages for having been dragged into lawsuits is not granted since she sought compensation from Bahizi Frodouard who did not bring her before the Court as the latter did not file any appeal. The rest of the litigants did not request for counsel and procedural fees. III. DECISION OF THE COURT

Holds that the appeal filed by Barawumfitiye Vestine is not admitted as it does not fall within the jurisdiction of the Court of Appeal.

Rules that the court fees deposited by Barawumfitiye Vestine while filing the appeal cover the expenses of the proceedings.