BIMENYIMANA v NDERERIMANA

BIMENYIMANA v NDERERIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-11-15 - Case/document no.: RS/INJUST/RCOM 00006/2023/SC - Collection: Supreme Court

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BIMENYIMANA v

NDERERIMANA [Rwanda SUPREME COURT– RS/INJUST/RCOM 00006/2023/SC] (Mukamulisa, P.J., Kalihangabo and Hitiyaremye J.) November 15, 2024] Commercial procedure – Invalidation of auction – Jurisdiction of the Supreme Court – In the interests of justice, the Supreme Court may adjudicate a case relating to the invalidation of an auction that is normally within the jurisdiction of the primary courts. Facts: Ndererimana Gédéon claims that the professional court bailiff Bimenyimana Innocent illegally auctioned his property, prompting him to file a claim in the Commercial Court requesting the invalidataion of the auction because he was not notified of it. Bailiff Bimenyimana raised inadmissibility objection on the grounds of being time-barred as the auction was conducted two years ago, whereas the law provides that any person contesting an auction must file a claim for its invalidation within 15 days. Ndererimana appealed to the Commercial High Court, arguing that the Commercial Court rejected his claim based on his delay in filing it, which was not the case, because from the time he learnt about the sale of his property, there was no delay because he filed the claim within the time limits provided by the law. He therefore

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requested the Commercial High Court to uphold his claim and invalidate the auction in question. The Commercial High Court upheld Ndererimana's appeal, ordered that the judgment in the case RCOM 01295/2022/TC should be reversed entirely because the claim was not admitted in the trial court and should have been admitted after finding that the time limits for filing the claim were respected. This instant Court however, did not order that the judgment of the Commercial Court should be set aside and that it was transferred that case for the hearing on merits. Bimenyimana wrote to the President of the Court of Appeal requesting that the case should be reviewed on grounds of injustice. The successful bidder also wished to intervene in this present case because the property had already been registered to him, and his request was granted because he had an interest in it. Held: In the interests of justice, the Supreme Court may adjudicate a case relating to the invalidation of auction that is normally within the jurisdiction of the primary courts. The application for review of the judgment on grounds of being vitiated by injustice is unfounded. Statutes and statutory nstruments referred to:

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Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article 158 and 260. Case laws referred to: RS/INJUST/RC 00024/2018/CS decided on 21/02/2020, involving Ngizweninshuti Albert v. Muhima Giovanni, RS/INJUST/RC 00007/2018/SC decided on 13/03/2020, involving Nditiribambe Samuel, Gatera Jason v. Nyamaswa Faustin, RS/ INJUST/RC 00004/2019/SC decided on 28/07/2020 involving Mukamana Mamique, others v. Candali Vérène, others), RS/INJUST/RCOM 00001/2019/SC decided on 14/02/2024, involving Bagaragaza Thaddée, others. Judgment I. BACKGROUND OF THE CASE

Bimenyimana Innocent, the professional court bailiff, auctioned the assets of Ndererimana Gédéon registered under UPI:4/03/03/04/3678, as a result of the execution of the judgment RCOM 00335/2019/TC rendered on 29/04/2019, in which Ndererimana Gédéon lost the case against Universal Trading Ltd, and was ordered to pay 13,067,050 Frw, 202,191 Frw of interest, 600,000 Frw including counsel’s fees, procedural fees and

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court bailiff's fees and 20,000 Frw of deposited court fee in filing the claim.

Ndererimana Gédéon filed a claim before the Primary Court of Muhoza requesting for the invalidation of the auction, and in the judgment RC 00359/2022/TB/MUH rendered on 17/07/2022, the Court declared that the claim was not admitted as it has been filed in a court that did not have jurisdiction. Following that decision, he filed a claim with the Commercial Court requesting for the invalidation of the auction conducted on his property on grounds that the Court Bailiff did neither notify him of it nor comply with the procedures provided for by the law. Bimenyimana Innocent raised inadmissibility objection of NDERERIMANA Gédéon's claim because it was filed when the time limits were elapsed.

In the judgment RCOM 01295/2022/TC rendered on 05/09/2022, the Commercial Court declared that Ndererimana Gédéon's claim was not admitted and ordered him to pay to Bimenyimana Innocent 500,000 Frw of counsel’s fees and 50,000 Frw for procedural fees.

In ruling, the Commercial Court based its decision on the fact that Ndererimana Gédéon filed a claim to invalidate the auction of his property registered under UPI: 4/03/03/04/3678 on 25/07/2022, while the auction had been conducted on 26/05/2020, that is, two (2) years later, meaning that he exceeded the 15-days period for filing a claim provided for in article 260 of Law n°

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22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure1.

On 12/09/2022, Ndererimana Gédéon appealed to the Commercial High Court, arguing that the Commercial Court rejected his claim based on the fact that he delayed to submit it, which was not the case, because from the time he learnt about the sale of his property, that is, on 10/05/2022, there was no delay; and that he was ordered to pay damages without justifications, which led him to request the Commercial High Court to uphold his claim and invalidate the auction in question.

Bimenyimana Innocent raised an objection to the admissibility of Ndererimana Gédéon’s appeal on the grounds that he delayed to file the appeal. He further argued that, even at the first instance, the claim should not have been admitted, as the Commercial Court had rightly found, because Ndererimana had been duly notified of the auction sale of his property but failed to contest its annulment for a period of up to two years. He requested that this objection should be re-examined and that the judgment rendered at the first instance should be upheld.

In the judgment RCOMA 00599/2022/HCC rendered on 07/10/2022, the Commercial High Court declared Ndererimana Gédéon’s appeal founded, and ordered that the judgment of the appealed case RCOM 01295/2022/TC should be entirely reversed.

1 Paragraph 4 of that article states that a request for the invalidation of auction is filed within fifteen (15) days from the date on which the auction was conducted.

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In making such decision, the Commercial High Court based on the fact that Bimenyimana Innocent failed to provide any evidence to prove that he had notified Ndererimana Gédéon all the procedures related to the auction within the time limits provided for by the law, and this Court found that the case RCOM 01295/2022/TC should have been admitted by the Commercial Court and examined on its merits.

Bimenyimana Innocent wrote to the President of the Court of Appeal requesting the review of the judgment on grounds of injustice. After examining the request, the President of the Court of Appeal wrote to the President of the Supreme Court requesting that the judgment should be reviewed on grounds of injustice, and the latter approved the request, and the case was registered under RS/INJUST/RCOM 00006/2023/SC.

This case was first called on 06/06/2024, but was not heard. Instead, this instant Court decided to return it to the Court’s Registry for a pre-trial conference. However, Bimenyimana Innocent, who prevented the pre- trial conference from being done, was fined with 50,000 Frw2.

The hearing was resumed and conducted in public on 09/10/2024, Bimenyimana Innocent was assisted by Counsel Ndayishimiye Jean Paul while Ndererimana Gédéon was assisted by Counsel Munyentwari Charles. Counsel Gahutu Joseph also appeared representing Uwambayinema Anne who wished to intervene in this

2 Bimenyimana Innocent paid that fine as indicated in the case file.

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present case as the successful bidder for the property registered under UPI: 4/03/03/04/3678 which had been already registered in her names jointly with her husband Tuyiringire Joseph.

After hearing the explanations provided by the parties on the request for intervention in this case submitted by Uwambayinema Anne, the Court, based on the position established in various cases stating that every person has the right to voluntarily intervene in injustice case in accordance with the provisions of articles 113 and 114 of Law n0 22/2018 of 29/04/2018 mentioned above3, and the fact that the property sold at auction was bought by Uwambayinema Anne and registered under her names, this ruled that she is allowed to intervene in this instant case because she has an interest in it.

Before the hearing on merits, the Court first considered the following issues:  Whether Ndererimana Gédéon's appeal should not have been admitted by the Commercial High Court;  Whether the Commercial Court had no jurisdiction to hear the claim for the invalidation of the auction held on the property of Ndererimana Gédéon.

3 See the decision of the Court taken in the hearing of 13/01/2021 in the case RS/INJUST/RC 00011/2019/SC involving Mukamusoni Petronille, others.

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After hearing the arguments presented by the parties regarding the first issue, this Court found that the objection concerning Ndererimana Gédéon's failure to comply with the statutory time limits for appeal before the Commercial High Court — specifically, his failure to respect the three-day (3) appeal period prescribed by law — had been raised before that Court but was not addressed in its ruling.

Based on paragraph 2 of article 188 of Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date4, and article 275 of the same Law, this Court found that the case RCOM 01295/2022/TC was heard on 1/09/2022, the parties were notified that it would be pronounced on 5/09/2022, and it was pronounced on that day but the pronouncement report was attached to the IECMS on 06/09/2022, and a copy of the judgment was attached to the case file on 07/09/2022. Based on article 275 mentioned above5, the Court found that the time limits for filing an appeal should be calculated from 08/09/2022, and the last day for filing an appeal would be on 12/09/2022 because the date of 10 and 11/09/2022 were public holidays. After noting that the appeal was filed on 12/09/2022, the Court found that Ndererimana Gédéon complied with the time limits for filing appeal.

4 Provides: “The appeal is made within three (3) working days from the time the order was pronounced or from the day the parties were aware of the decision.”. 5 Provides that: “ The time limits set in terms of days or hours shall be calculated from date to date, or hour to hour. The day of the act or event that gave rise to the claim is not taken into account but the day of expiration is included.”

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The Court also considered the issue of whether the Commercial Court had jurisdiction to hear the claim for the invalidation of the auction conducted on the property of Ndererimana Gédéon, and found that this issue had not been raised before the Commercial High Court, as neither party had requested it to be examined. After hearing the parties' explanations, and based on its established position in similar cases, the Court held that the fact that a case is being reviewed on the grounds of alleged injustice does not allow a party to introduce new claims that were neither raised nor examined in the case under review, because the party does not claim that he suffered injustice on a matter that has not been requested to the Court for consideration6, consequently, the Court ruled that this issue should not be examined at the injustice level in this instant case.

The hearing was resumed, the parties debated on the issues related to whether Ndererimana Gédéon delayed in filing a claim to invalidate the auction and the issue of various damages claimed by the parties. II. ANALYSIS OF LEGAL ISSUES i. Whether Ndererimana Gédéon delayed for filing a claim seeking the invalidation of the auction

6 See judgment RS/INJUST/RC 00024/2018/CS decided on 21/02/2020, involving Ngizweninshuti Albert v. Muhima Giovanni, Judgment RS/INJUST/RC 00007/2018/SC decided on 13/03/2020, involving Nditiribambe Samuel, Gatera Jason v. Nyamaswa Faustin and Judgment RS/ INJUST/RC 00004/2019/SC decided on 28/07/2020 involving Mukamana Mamique, others v. Candali Vérène, others).

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Bimenyimana Innocent, assisted by Counsel Ndayishimiye Jean Paul, states that, following the fact that Ndererimana Gédéon lost the case RCOM 00335/2019/TC, Universal Trading Ltd—the winning party—engaged him to enforce the judgment and recover the debt. He explains that each time he presented the debt collection documents to Ndererimana Gédéon, the latter refused to sign them, which ultimately resulted in the auction of his immovable property registered under UPI: 4/03/03/04/3678.

He further argues that Ndererimana Gédéon did not comply with the time limits provided for by the law for filing a claim seeking the invalidation of the auction, because the auction was conducted on 26/05/2020, and he filed the claim on 25/05/2022, that is, 2 years later, whereas he should have filed it within 15 days as provided for in article 260 of Law nº 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure.

Ndererimana Gédéon, assisted by Counsel Munyentwari Charles, states that he learnt about the auction in which his property was sold on 10/05/2022 when Bimenyimana Innocent sent him its report by email. He filed a claim to the Primary Court of Muhoza on 25/05/2022, but it was rejected because the Court on 17/07/2022, ruled that it had no jurisdiction to hear his case, which compelled him to file it before the Commercial Court on 25/07/2022, therefore he complied with the 15 days provided for by the Law.

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He adds that before the date of 10/05/2022, he had never been informed about the auction, that even the documents in Bimenyimana Innocent’s case file showing that he had informed him and refused to sign them, do not tell the truth, that he was the one who drafted them after realizing that there were errors committed in the auction of his property.

He also states that after noting that a person named Tuyiringire Joseph had built on his land with UPI 03/03/03/04/3678 under the pretext that he had bought it through the auction, on 27/01/2022, he appealed to the Executive Secretary of the Gacaca Cell requesting for justice, and on 14/02/2022 he wrote to the President of the Professional Bailiffs Association and he informed him that they had occupied his land under the pretext of an auction which had not been conducted, and even notified Universal Trading Ltd for which the judgment was executed.

He further states that on the same date of 14/02/2022, the Counsel for Universal Trading Ltd mentioned that Bimenyimana Innocent had enforced the case in unclear manner as he had neither submitted a report nor provided the proceeds from the enforcement, which prompted him to write to Bimenyimana Innocent on 21/04/2022 requesting for information about what had been done to his property without being informed. On 10/05/2024, Bimenyimana Innocent sent him an email showing a report of the proceeds from the auction conducted on his property, and attached the auction report of 26/05/2020.

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He concludes by stating that on 26/05/2020, the day the auction was conducted, it was during the Covid- 19 period, and it was not possible for it to be conducted based on the instructions of the Cabinet meeting held on 18/05/2020.

Counsel Gahutu Joseph, representing Uwambayinema Anne, who intervened in this present case, avers that Ndererimana Gédéon delayed for filing a claim seeking the invalidation of the auction as it is unclear how he spent 2 years without knowing that the auction was connducted on his property.

DETERMINATION OF THE

COURT

Paragraphs 1, 2, 3, and 4 of article 260 of Law n° 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, provides that “ Any interested person may ask the staying of the auction to the primary court which has jurisdiction at the place of the auction, if: 1° there is a lack of compliance with the laws related to surety, seizure and publication of auction; 2° when the property to be auctioned cannot be sold since the owner is a destitute as provided for by Article 259 of this Law; 3° when there is a certain evidence that the property to be auctioned does not belong to the debtor. The same grounds mentioned are also referred to when a person requests the invalidation of an auction. A person who requests the invalidation of an auction may also file a complaint against a court bailiff to make him or her accountable for a damage. A request

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for the invalidation of auction is filed within fifteen (15) days from the date on which the auction was conducted. The claims referred to in this Article are heard in the same period as he one provided for a summary procedure”.

Paragraph 1 of article 12 of Law n° 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, provides that “The claimant must prove a claim, failing which the respondent wins the case.”

The debate in this case is based on whether Ndererimana Gédéon did not respect the 15-day period to file a claim for the invalidation of an auction, because Bimenyimana claims that the auction was conducted on 26/05/2020, and the claim was filed on 25/05/2022, while Ndererimana Gédéon claims that he was not previously notified of the auction because he learnt about it on 10/05/2022 when its report was sent to him by email.

The Court finds that the elements of evidence presented by Bimenyimana Innocent to prove that he notified Ndererimana Gédéon of the auction procedures conducted on his property, are composed of a document dated 02/07/2019 written by Bimenyimana Innocent, stating that Ndererimana Gédéon was given a document requesting him to indicate his property along with the copy of the judgment RCOM 00335/2019/TC decided on 29/04/20197 and he refused to sign on it.

7 It ordered him to pay to Universal Trading Ltd 13.067.050 Frw, 202.191 Frw for interests, 600.000 Frw for counsel’s fee, procedural fee and Court Bailiff’s fee and 20.000 Frw as deposit court fee.

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There is also a document dated 25/02/2020, notifying Ndererimana Gédéon of the valuation report for the execution of the judgment RCOM 00335/2019/TC. In that document, Bimenyimana Innocent states that he called Ndererimana on his mobile phone number 0784858937 and told him that he needed him to give him the document and the valuation report and Ndererimana responded by telling him to do whatever he wants.

As above reiterated, Ndererimana Gédéon claims that he was never notified of the documents of 02/07/2019 and of 25/02/2020 above mentioned, that these documents were drafted by Bimenyimana Innocent himself with the intention of lying, and that if he had the intention to notify him, he would have gone to his home and handed them to him, but instead, he only notified him of the auction report after realizing that there were errors committed in the auction of his property.

The Court finds that Ndererimana Gédéon who claims that he was not previously notified of the auction, provided evidence that he was informed about it on 10/05/2022 when Bimenyimana Innocent sent him an email of 09/05/2022 consisting of a report on the proceeds of the auction conducted on his property, and attached the auction report dated 26/05/2020. In that email, Bimenyimana begins by stating: “I am writing this letter to provide you with information regarding the auction as requested in your letter of 14/02/2022 reached to me on 05/05/2022 through the Management of the Rwanda Court Bailiffs Association…”

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Basing on the foregoing statements, the Court finds that, although Bimenyimana Innocent claims that the auction was conducted on 26/05/2020, from which he counts the time limits that Ndererimana Gédéon should comply with, he does not produce the evidence proving that he was aware of the auction, especially since he (Ndererimana Gédéon) presented the evidence that he was notified of the auction report on 10/05/2022, even after requesting for it. This is the basis for determing the time limits for filing the claim, especially since Bimenyimana Innocent does not deny that on that date he sent to him the email mentioned above or provides other evidence that he notified him of the auction report before that date.

The Court finds that after being notified of the aforementioned report, on 25/07/2022 Ndererimana Gédéon first filed a claim before the Primary Court of Muhoza; however, on 17/07/2022 it declared that it lacked jurisdiction, the rason why on 25/07/2022 he filed a claim before the Commercial Court.

Basing on the aforementioned statements, the Court finds that, from the time he was notified of the auction report, Ndererimana Gédéon complied with the 15-day period referred to in paragraph 3 of article 260 of Law n° 22/2018 of 29/04/2018 mentioned above, as also upheld by the Commercial High Court, his claim before the Commercial Court would have been admitted for examination. For this reason, Bimenyimana Innocent's claim seeking the review of the judgment on grounds of injustice is unfounded.

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Paragraph 2 of article 158 of Law n° 22/2018 of 29/04/2018 mentioned above provides that if the appeal court finds that the seizure of jurisdiction at the first degree was lawful and that court declared it inadmissible, when it was to receive and judge this case, the court of appeal hears the case and declares that it was of the competence of that lower court; it declares this judgement void and refers the case to the first instance court so that it hears it again on the merits.

The Court finds that on 25/07/2022, even if in the judgment RCOMA 00599/2022/HCC rendered on 07/10/2022, the Commercial High Court analyzed the appeal of Ndererimana Gédéon and declared it justified and ordered that the ruling of the appealed judgment RCOM 01295/2022/TC should be reversed in all parts, it never ordered that the case had to be transferred to the Commercial Court that had adjudicated it for hearing on the merits.

The Court finds that, based on Article 158, paragraph 2, of Law no 22/2018 of 29/04/2018 mentioned above, this case should have been referred to the Commercial Court for substantive examination of the claim challenging the validity of the auction, which had been brought before that Court by Ndererimana Gédéon, as it has not yet been adjudicated. However, considering the time that has elapsed since the claim was filed, and taking into account that claims contesting the validity of an auction are considered urgent due to their nature, referring the matter back to the first instance court — with

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the likelihood of further appeals or delays could result in the case remaining unresolved for an extended period.

In order to correct the above-mentioned errors and in the interests of justice, this present Court finds that it should hear the merits of the claim relating to the invalidation of the auction. The fact that at the level of injustice, the Supreme Court adjudicates a case which was otherwise within the jurisdiction of the lower courts, this Court applied so in various cases it has adjudicated8.

Based on the foregoing, the hearing of this present case will proceed with an analysis of the merits of the claim that Ndererimana Gédéon submitted to the Commercial Court, at the same time the issue of damages claimed in this present case will also be examined. III. DECISION OF THE COURT

Declares the application filed by Bimenyimana Innocent seeking the review on grounds of injustice of the judgment RCOMA 00599/2022/HCC rendered by the Commercial High Court on 07/10/2022, unfounded;

8 For example: Interlocutory judgment RS/INJUST/RCOM 00001/2019/SC decided on 14/02/2024, involving Bagaragaza Thaddée, others, page 7- 8: In that judgment, the Court referred to the position set in the other judgment nº RS/Injust/RCOM 00007/2021/SC decided on 29/04/2022, involving Sikubwabo Raphaël v. RDB.

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Holds that the claim filed by Ndererimana Gédéon before the Commercial Court should have been admitted as it was filed in accordance with the law;

Decides that the hearing will proceed with the determination of the merits of the claim filed by Ndererimana Gédéon before the Commercial Court and the issue of damages claimed in this present case;

Declares that the date on which the case will be heard again, shall be communicated to the parties by the Registry of the Court.