BEN BENZINGE v. NRD Ltd

BEN BENZINGE v. NRD Ltd

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-01-10 - Case/document no.: RCOM0011/13/CS - Collection: Supreme Court

Text

Page 1

BEN BENZINGE v. NRD Ltd [Rwanda SUPREME COURT – RCOM0011/13/CS (Mukanyundo, P.J., Hatangimbabazi and Gakwaya, J.) 10 January 2014] Commercial Procedure – The summary procedure claim – Jurisdiction of the Supreme Court for hearing the summary procedure claim – In case the principal claim or the appeal is in the competence of the Supreme Court nothing can prevent it to analyse the summary procedure claim that is connected to it – Organic Law nº 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28 the first paragraph – Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, the article 316 combined with 317. Commercial Procedure – Filing a summary procedure claim – The summary procedure claim filed by the defendant which is connected to the plaintiff’s claim – It is not admitted since a summary procedure claim aims at urgently protecting the interest of the plaintiff – The Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, the article 316. Facts: Ben Benzinge sued Natural Resources Development Rwanda Ltd before the arbitral court requesting that Roderick Marshal be removed from the office of the acting Managing Director for appointing another acting Managing Director, the Board of directors to be provisionary suspended from

their duties and the provisional execution. The arbitral court decided the removal Roderick Marshal and Mrs. Zuzana Mruskovicova from the members of Board of Directors; it illegally decided that Natural Resources Development holding GmbH and HC Starck GmbH become the shareholders in Natural Resources Development Rwanda Ltd, that Mr. Van Kays was illegally appointed as the Auditor, it condemned Natural Resources Development Rwanda Ltd to pay to Ben Benzinge 10,000,000 Frw. Natural Resources Development Rwanda Ltd appealed against that decision before the Commercial High Court requesting for the annulment of the decision taken, the Commercial High Court declared its claim to be baseless. It again appealed before the Supreme Court, and Ben Benzinge also up on its appeal lodged a summary procedure claim requesting for the appointment of the acting administration of Natural Resources Development Rwanda Ltd waiting for decision on the principle claim. Natural Resources Development Rwanda Ltd raised an objection arguing that the Supreme Court is not competent to hear the summary procedure claim. The court asked the parties whether the summary procedure claim may be admitted in case the applicant did not lodge a principal claim. Held: 1. The article 316 of the Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure does not exclude the Supreme Court among the courts which have to be seized for the summary procedure claim. The fact that the article 317 of the mentioned, does not mention the Supreme Court is that its competence and functioning are governed by its Organic Law and that it is competent to be seized at the appeal level. In case the

Page 2

claim or the appeal is in the competence of the Supreme Court nothing can prevent it to analyse the summary procedure claim connected to it.

2. The summary procedure claim is a procedure which allows the one who lodged the principal claim to make some requests to that court for taking an urgent decision aiming at protecting his/her interests. This procedure is not reserved for the one who did not lodge that principal claim. Thus the defendant in the principal claim is not the one who is provided in that article, who may lodge the summary procedure claim which is provided therein. Objection of incompetence lacks merit. Summary procedure claim of the applicant is not admitted. Court fees to the applicant. Statutes or statutory instrument referred to: Organic Law nº 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28, paragraph 1; Law n° 21/2012 of 14/06/2012relating to the civil, commercial, labour and administrative procedure, article 316 and 317. No case referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] On 17 May 2013 the arbitral court decided the case in which Ben Benzinge sued Natural Resources Development Rwanda Ltd, requesting that Mr. Roderick Marshal may be dismissed from the office of the acting Managing Director, for another acting director to be appointed, the Board of Directors of Resources Development Rwanda Ltd be provisionally suspended. He also requested for the provisional execution of the judgment. [2] In deciding, the Arbitral

Court declared that BEN BENZINGE’s claim has basis on some grounds, and decided to annul some decisions of the Board of Directors of 11.10.2011, 28.10.2010 and of 10.12.2008 since they were illegally taken, it decided that the provisional execution was not allowed, it decided that Mrs. Zuzana MRUSKOVICOVA and Mr. Roderick Marshal are dismissed from the members of the Board of Directors, it decided that Natural Resources Development Holding GmbH and HC Starck GmbH become the shareholders in Natural Resources Development Rwanda Ltd, that Mr. Van Kays was illegally appointed as the Auditor and must be dismissed from that post, it condemned Natural Resources Development Rwanda Ltd to pay to Ben Benzinge 10,000,000 Frw. [3] Natural Resources Development Rwanda Ltd appealed before the Commercial High Court requesting for the annulment of the decision mentioned which was taken by the arbitral court. The Commercial High Court declared its claim to be baseless. And it appealed before the Supreme Court under RCOMA 0017/13/CJ, Ben Benzinge also up on its appeal and lodged an

Page 3

summary procedure claim in that court requesting to appoint the acting administration of Natural Resources Development Rwanda Ltd waiting for the principal claim to be decided. [4] During the hearing of Ben Benzinge’s summary procedure claim, the one representing Natural Resources Development Rwanda Ltd raised an objection arguing that the Supreme Court is not competent to hear the summary procedure claim, and that what Ben Benzinge request was decided by the arbitral court. The court based on that and asked the parties whether the summary procedure claim may be admitted in case the applicant has not lodge the principal claim. [5] The hearing on those issues was held on 07/01/2014, Natural Resources Development Rwanda Ltd was represented by Me BOKANGA, while BEN BENZINGE was represented by Nshimyumuremyi, the counsel, the court informed the parties that it will first decide on those issues. II. THE ANALYSIS OF LEGAL ISSUES A. Whether the Supreme Court does not have the jurisdiction of hearing the summary procedure claim. [6] The counsel for Natural Resources Development Rwanda Ltd, states that the Supreme Court does not have the jurisdiction of hearing the summary procedure claim basing on the article 317 of the Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure where it provides that among courts to hear summary procedure claim, the Supreme Court is no mentioned. [7] The counsel for Ben Benzinge states that the Supreme Court is competent basing on the article 316 of the Law n° 21/2012 of 14/06/2012 mentioned above, where it provides that the competent court which has jurisdiction to hear the summary procedure claim is the one which was seized with the principal claim.

THE VIEW OF THE COURT [8] The article 316 of the Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure provides for that when there is need to have a 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 jurisdiction where the urgent measure is required in accordance with ordinary summons procedure, while the article 317 of this law provides the way in which the court or the Judges hear the summary procedure cases which are among the cases that fall in the jurisdiction of the court in which they are stated that: ▪ The President of the Primary Court or another designated judge shall hear summary procedure cases that fall within the jurisdiction of that Court and thereafter take a decision. ▪ The President of the Intermediate Court, Commercial Court or another designated judge shall hear summary procedure cases that fall within the jurisdiction of that court and thereafter take a decision.

Page 4

▪ The President of the High Court, the Commercial High Court or another designated judge shall hear summary procedure cases that fall within the jurisdiction of that court and thereafter take a decision [9] By analyzing what is provided by articles 316 and 317 mentioned above and when they are analyzed together with regard to the jurisdiction of hearing the summary procedure claims, the court realizes that the Law n° 21/2012 of 14/06/2012 mentioned above does not exclude the Supreme Court from the courts which have to be seized for the summary procedure claims. However, it demonstrates that the summary procedure claim is seized with the judge charged to analyze it. [10] Thus, the court realizes the fact that the article 317 mentioned above, does not mention the Supreme Court, it is that the competence and its organization is regulated by its special Organic Law. It is understood that regarding the competence provided in that article it concerns the lower courts (The Primary Court, the Intermediate Court and the High Court). In addition, that article is related to the claims analyzed at the first instance by those courts, while at the appeal level, there are the laws which are applied relating to the appeal. With regards to the jurisdiction of the Supreme Court, they are included in its special Organic Law as it has been stated. [11] The court realizes as it is stated in the

paragraph one of the article 28 of the Organic Law nº 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court that the Supreme Court shall have appellate jurisdiction over cases heard and decided in the first instance by the High Court, the Commercial High Court or by the Military High Court. The fact that this court is competent to be seized at appeal in accordance with what has been mentioned in that article, this is understood that as the court seized with the case which was not yet decided, is also competent to analyze the summary procedure claim connected to the principal appeal seized with it, what is provided for by the article 316 of the law N° 21/2012 of 14/06/2012relating to the civil, commercial, labour and administrative procedure with regard to the summary procedure claims at the first level has also to applied before the appellate courts the Supreme Court included. [12] The court realizes indeed that, in case the principal claim or appeal filed, falls in the jurisdiction of the Supreme Court, nothing prevents the Supreme Court from analyzing the summary procedure claim connected to them. Thus, the objection of Natural Resources Development Rwanda Ltd on this ground is baseless. B. Whether the summary procedure claim lodged by Ben Benzinge may be admitted in case he is not the one who lodged the principal

claim. [13] With regards to this issue, either the counsel for Ben Benzinge or Natural Resources Development Rwanda Ltd, all state that the defendant is allowed to lodge the summary procedure claim basing on the article 316 of the Law n° 21/2012 of 14/06/2012 mentioned above, even if it is not the one who lodged the principal claim. [14] As mentioned above, the article 316 of the Law n° 21/2012 of 14/06/2012 relating to civil, commercial, labour and administrative procedure provides for that when there is need to have a interim ruling on a matter which requires urgent resolution, an action shall be filed in

Page 5

accordance with the ordinary procedure regarding principal suits, before an urgent applications judge. [15] By analyzing the provisions of the article 316, the court realizes that the summary procedure claim is a procedure which allows the one who lodged the principal claim to make some requests to that court for taking urgent decision aiming at protecting his/her interests. This procedure is not reserved for the one who did not lodge that principal claim, thus the defendant in the principal claim is not the one who is provided in that article to lodge an exparte application which is provided therein. [16] Basing on the explanation above, the court realizes that in case Ben Benzinge has not lodged a principal claim before the Supreme Court, the summary procedure claim lodged, has not to be admitted since it was lodged in contradiction with the provision of the article 316 of the Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure. III. THE DECISION OF THE COURT [17] Decides to admit the objection raised by Natural Resources Development Rwanda Ltd (NRD), since it was lodged legally; [18] Decides that the procedural objection of the Supreme Court raised by the Natural Resources Development Rwanda Ltd (NRD) is baseless; [19] Decides no to admit the summary procedure claim lodged by Ben Benzinge since it was lodged in the way not provided for by the article 316 of Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure. [20] Condemns Ben Benzinge to pay the court fees amounting to 12,100 Frw, in case it will be taken from his property through the state’s power.