BRALIRWA) Ltd v. SIDIKUBWABO

BRALIRWA) Ltd v. SIDIKUBWABO

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-02-26 - Case/document no.: RS/REV/COM 0001/13/CS - Collection: Supreme Court

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BRALIRWA) Ltd v. SIDIKUBWABO [Rwanda SUPREME COURT – RS/REV/COM 0001/13/CS (Mugenzi, P.J., Nyirandabaruta and Karimunda, J.) 26 February 2016] Commercial procedure – Review – Admissibility of evidence for review – Is the one which would have led the court to deciding otherwise and it is not enough that it be submitted just after the adjudication of the judgment subjected to review for it to be admissible – Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, articles 3, 33, 108. Commercial procedure – Admissibility of a counterclaim – It is not admissible when the principal claim is not admitted – Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, articles 3, 33, 108. Facts: Brasseries et Limonaderies du Rwanda (BRALIRWA) S.A. concluded with Sindukubwabo Cyprien the contract of distribution of the beverage. Later, Brasseries et Limonaderies du Rwanda (BRALIRWA) S.A requested Sindukubwabo to bring back its packages which it had in its possession or opt for paying its equivalent. After Sindukubwabo checked his code and found out that there is an amount of money that BRALIRWA Ltd had withdrawn, by way of his forged signature. This caused to file a claim against Brasseries et Limonaderies du Rwanda (BRALIRWA) S.A before Intermediate Court of Nyarugenge requesting the restitution of

that amount, its interests as well as the procedural fees. After the expertise revealed that those signatures were not put by Sindikubwabo, the Court condemned Brasseries et Limonaderies du Rwanda (BRALIRWA) S.A to pay to Sindikubwabo 31.368.523Frw equivalent to the money withdrawn from his code, its interests and procedural fees. Brasseries et Limonaderies du Rwanda (BRALIRWA) S.A appealed to the Commercial High Court and it held that his appeal has no merit. He appealed again to the Supreme Court and the latter also held that his appeal lacks merit and he was ordered to respect the decision of the Commercial High Court with additional interests, advocate fees and prorated fees. BRALIRWA Ltd then filed application for review before the Supreme Court because after the case was decided, it acquired conclusive evidence that he could not have access prior to the final adjudication of the case which, had the case been heard while those pieces of evidence were available, the judgment would have been otherwise decided. He states that those pieces of evidence are books of accounting of Sindikubwabo. He states that those books were to prove his cash flow. To these grounds of application, Sindikubwabo responded that the concerns of the books of accounting had been discussed before all jurisdiction and it was confirmed that they could contribute nothing with regard to the settlement of the disputes so long as it is not illegal tax declaration under contention but rather the issue was to know whether he was the author of the signatures on the purchase order. He filed a counterclaim..

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Held: Admissible evidence in application for review is the one which would have led the court to deciding otherwise if it was available and it is not enough for evidence to be submitted after the adjudication of the judgment subjected to review to be admissible, instead, prior to assessing whether that evidence is conclusive, it is assessed whether the case would be otherwise adjudicated if it was available. Therefore, the fact that the Court had to examine the validity of the evidence to be based on for application for review compared to those pieces of evidence which contained in the casefile and found that it could contribute nothing in connection to the settlement of the disputes and hence leads this Court to the conclusion of not considering those pieces of evidence as if they come to its knowledge for the first time and that BRALIRWA Ltd has delibaretely ignored to make recourse to the procedures which could have enabled it to get those evidence that it had to rely on at the previous instances but know presents them as knew evidence which must serve as the basis for- application for review especially that application for review becomes inadmissible if the grounds of its basis were known before by the applicant indicates that his application for review must not me admitted because it does not met the requirements set by the law. A counterclaim cannot be admissible when the

main claim does no longer exist. Therefore, the counterclaim filed by Sindikubwabo cannot be admitted because the application of BRALIRWA Ltd for review cannot be assessed. However since, it required him to hire a legal advocate, he is in the discretion of the court awarded advocate fees. Application is inadmissible’ BRALIRWA Ltd is condemned to pay advocate fees to Sindikubwabo; He is also ordered to pay court fees. Statutes and statutory instruments referred to: Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, articles 3, 33, 108 and 186 No case was referred to Authors cited Cour de Cassation, Chambre Civile 1, 23/10/2991, Bulletin, 1991, II, no 279, p.146. Serge Guinchard et Alii, Droit et pratique de la procédure civile, Paris, Dalloz, 2006, p.552. Monier c. Vanderhoute et Vanhumbeeck, Cour de Cassation de la Belgique, 1ère Chambre, 16 Mai 1974, in Pasicrisie Belge, Bruxelles, Ets Emile Bruylant, 1974, p.

965. Judgment I. BRIEF BACKGROUND OF THE CASE [1] Sindikubwabo Cyprien concluded with Brasseries et Limonaderies du Rwanda (BRALIRWA) S.A which changed now to BRALIRWA Ltd, the contract distribution of its beverage. In this context, it used to issue the purchase order prior to the supply by BRALIRWA

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Ltd in response to that order and get advance payment from the code nᵒ 368 of Sindukubwabo Cyprien. [2] The this case then arose when BRALIRWA Ltd requested SINDIKUBWABO Cyprien to give back its beer containers that he had in his possession or pay their equivalent amount of money and when SINDIKUBWABO Cyprien checked the statement of his code he found that there is an amount of money equivalent to 15.872.700 Frw that BRALIRWA LTD SA has taken as payment for 11 purchase orders which carried his false signature. Sindikubwabo Cyprien filed a claim before Nyarugenge Intermediate Court to obtain an order compelling BRALIRWA Ltd to refund that amount that it had withdrew from his code without notice, its interests and procedural fees. [3] The hearing took place and after its agreement with both parties, the Court decided to initially examine whether it is Sindikubwabo who has in reality signed to 11 purchase orders. The expertise revealed that it was not Sindikubwabo who signed. [4] Based on this finding and on the arguments of both parties, in the judgment no RCOM 0494/05/TP/Kig rendered on October 5, 2000, the Court decided that Sindikubwabo Cyprien must be paid the amount of money equivalent to those 11 purchase orders which amounts to 31.368.523 Frw, that is 15.695.858 Frw that whose payment is demanded, its interests amounting to 15.172.665 Frw and 500.000 Frw for procedural

fees. [5] BRALIRWA Ltd challenged the decision of the Court to the Commercial High Court alleging that the previous Court decided the case merely based on expertise while there were other pieces of evidence which had to prove the case otherwise. Sindikubwabo Cyprien as to him, the expertise report was based on since it was the conclusive evidence which shows whether it is him who had really issued those purchase order and whether the signature on them have n]been actually falsified. [6] In the judgment RCOMA 0137/08/HCC which was rendered on March 31, 2009, the Commercial High Court found that the signatures on those 11 purchase orders differ from specimen signature given by Sindikubwabo to BRALIRWA Ltd and it decided that appeal filed by BRALIRWA Ltd has no merit. [7] BRALIRWA Ltd again challenged the decision of the High Court to the Supreme Court stating that the former had not to rely only on expertise only while the truth would have been found in the accounting books and the payment slips of Sindikubwabo since they were to justify that he paid the amount of money under contention to the BRALIRWA Ltd. He added that there are other grounds that the Court did not discuss. [8] In the judgment No RCOMAA 0016/09/CS rendered on November 12, 2010, the Supreme Court found appeal filed by BRALIRWA Ltd with no merit and ordered it to pay to Sindikubwabo Cyprien 37.008.079 Frw comprised of 31.368.523 Frw that was awarded in the previous courts, additional interests of 4.839.556 Frw, advocate fees equivalent to 1.300.000 Frw and the prorated fee equivalent to 1.480.323 Frw. [9] On July16, 2013 counsel Mhayimana Isaïe filed a claim in the name of BRALIRWA Ltd requesting the review of the judgment no RCOMAA 0016/09/CS rendered by the Supreme Court

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on November 12, 2010. He supported his application with the allegation that he found conclusive evidence that he could not possess before the judgment was adjudicated and that it would have been adjudicated otherwise if that evidence was in possession of the Court. [10] SINDIKUBWABO Cyprien also filed a counterclaim requesting moral damages from the time he has been on hold for the execution of the judgment subjected to the procedure of review, advocate fees and he requested further the Court to issue an order compelling him to pay the money requested by «Equatorial Motor» garage, the garnishee, for the time it spent while keeping the vehicle of BRLIRWA Ltd which was seized under the procedure of garnishment in connection to the judgment under review. He requested further the penalty forcing BRALIRWA Ltd to pay for every day of late payment from the date of the pronouncement of the judgment. http://www.duhaime.org/LegalResources/Contracts/LawArticle-87/Part-2-Privity-Consent-and- the-Reasonable-Man.aspx [11] The public hearing took place on January 19, 2016 BRALIRWA LTD Ltd was represented by MHAYIMANA Isaïe while SINDIKUBWABO Cyprien was represented by Me MUNYESHEMA Shuaib Napoléon. Both parties had initially provided explanations on the admissibility of the claim. II. ANALYSIS OF LEGAL ISSUES II.1. Whether the application of BRWALIRWA Ltd for review of the judgment RCOMAA

0016/09/CS rendered by the Supreme Court on November 12, 2010 would be admissible [12] MHAYIMANA Isaïe, counsel for BRALIRWA Ltd states that started Sindukubwabo Cyprien seeking the payment of 15.872.700 Frw from BRALIRWA Ltd that he would have withdrawn from his code and what Sindikubwabo Cyprien was requested to prove was the manner under which he might have deposited such amount on that code and the manner under which BRALIRWA Lrd might have withdrawn such amount, this means that accounting books of Sindikubwabo Cyprien must serve as the basis because, apart from the fact that those books are conclusive evidence between traders, they are also evidence of the cash flow. [13] He argued that those books could not be in possession of BRALIRWA because; its duty was only the presentation of its defense. He added also that if BRALIRWA had demanded those books, it could not prohibit the tax administrator to reveal accounting information to the third party, the reason why BRALIRWA Ltd requested the Court to rely on the provisions of article 3 of Law No 15/2004 of 12/06/2004 relating to evidence and its production which orders Sindikubwabo Cyprien to provide those books so that the truth could be found and his requests was unduly rejected. Instead, the Courts based their decisions on the signatures which are found on the purchase order and it caused BRALIRWA Ltd to prejudicially lose the case. [14] He states further that from the time when BRALIRWA Ltd has lost the case, it made recourse to the Public Prosecution to be able to get the accounting books of Sindikubwabo Cyprien and it responded to their application on July 3, 2013 handing in the tax declaration done by Sindikubwabo Cyprien on the years 1997 and 1998 and his accounting books on the years

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1996 and 1997. He conclude that these are pieces of evidence that that were not available in the previous proceedings though they have been repeatedly requested and they are conclusive on the debt which is the subject of the contentions between BRWALIRWA Ltd and Sindikubwabo Cyprien. [15] He concludes stating that BRALITRWA Ltd filed an application for review after those pieces of evidence were available since they were available on July 3, 2013 and the application was made on July 16, 2013. It implies that his application was falls in the ambit of the period of two months as prescribed the law. He then ask this Court to rely on the provisions of article 33 of Organic Law No 03/2012/OL of 13/06/2012 determining, functioning, competence and jurisdiction of the Supreme Court as well as on article 186 of Law No 21/2012 of 14/06/2012 determining civil, commercial, labour and administrative procedure and declares admissible the application for review of the judgment no RCOMAA 0016/09/CS filed BRALIRWA Ltd as decided by the Supreme Court on November 12, 2010. [16] Munyeshema Shuaib Napoléon, counsel for Sindikubwabo Cyprien states that the concerns of the accounting books have been discussed before at all level of jurisdictions and it was decided that it would contribute nothing because it is not the case of illegal tax declaration under contention but, the matter was to know whether

the signatures on 11 purchase orders were put by Sindikubwabo Cyprien and the latter has showed that there are purchase orders that bears the plate number of his vehicle while it was in the garage being fixed while others were bearing his fake signature while BRALIRWA Ltd has his specimen signature and that the truth about the assertion that these signature were not put by him was proved by expert who was appointed upon agreement of both parties and that BRALIRWA Ltd did not prove that there were purchase orders which were in possession of Sindikubwabo Cyprien and then taken from him upon his negligence and that he would have commissioned someone else to get those beverage through those purchase orders. To him, all of these demonstrate that the arguments of BRALIRWA Ltd that the matter of litigation is to know whether Sindikubwabo Cyprien could own that 15.872.700 Frw at the time those purchase order were made is to want to mislead the Court since that amount of money were not paid at once, instead, the payment was done after the issuance of the purchase order. [17] He explained that based on article 5 and 9 of Law No 21/2012 of 14/06/2012 determining civil, commercial, labour and administrative procedure BRALIRWA Ltd has the onus of collecting evidence for its defence. He added that if it found that the tax declaration and books of accounting of Cyndikubwabo Cyprien were

deemed necessary since, even now he had not to initially seek authorization so that he could get them. To him, it means that he cannot present pieces of evidence that he would have collected before, that even now it accepts that it sought without any other help, and call them new as if their presence was not known or that they are conclusive to the extent of reviewing the judgment which would be otherwise under process of execution. [18] He concluded praying this Court to rely on article 191of Law No 21/2012 of 14/06/2012 as cited above and declares inadmissible and hence not assess on merit the grounds presented by BRALIRWA Ltd for review of the judgment no RCOMAA 00016/09/CS which was rendered by this Court (the Supreme Court) on November 12, 2010 and, instead, orders the judgment under application for review to be executed without any modification whatever.

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THE VIEW OF THE COURT [19] Article 33 Organic Law N° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court final judgements rendered by the Supreme Court may be subject to review in the same court in accordance with legal provisions governing judicial proceedings. Likewise, article 186 of [20] Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labor and administrative procedure provides that an application for review can be made due to one of the following reasons:... 3°if, since the time of rendering the judgment, it was evident that there was injustice due to the judgement for which the review is sought, whether an element of evidence was in the file but was not noticed by the court or was revealed later. [21] The documents in the casefile demonstrate that the subject of litigation in the judgment no RCOMAA 0016/09/CS which is subjected to review was ''the payment of 15.872.700 Frw BRALIRWA Ltd withdrew from my code without notifying me, its interests and procedural fees''. Counsel for BRALIRWA Ltd used to state that the conclusive evidence of the debt under contention were the accounting books and the deposit bank slips which demonstrate that Sindikubwabo Cyprien had deposited the amount of money that he demands BRALIRWA Ltd to pay on his code. He added that he continued requesting the Court to issue an order

compelling the other part to provide those pieces of evidence but it was not done(identification code 56, 52, and 63) while counsel for Sindikubwabo Cyprien states that when the Court appointed the expert who studied the signatures on the purchase orders and found that they were not put by the same author, both parties had agreed on that and that BRALIRWA Ltd does not challenge the report of the expert. He concluded that the fact that the signatures on the purchase orders fifer from his signature specimen that BRALIRWA Ltd had asked Sindikubwabo Cyprien so as to verify the one who made the purchase order indicates negligence on the side of BRALIRWA, which is the same error which led to the delivery of the false buyer. [22] The case files also demonstrates that in the course of examing the grounds of appeal presented by parties, the Supreme Court started by the value of evidence that was relied on for the adjudication of the appealed judgment and it concluded that the crucial issue was to know whether it is Sindikubwabo Cyprien who signed on the 11 purchase orders that he dinies to be the issuer and the Court found that among pieces of evidence that BRALIRWA Ltd states that they were disregarded, none could be more important than purchase order since such others that BRALIRWA Ltd presented has nothing to do with settling disputes about whether the signature on those 11 purchase

orders under contention were put by Sindikubwabo Cyprien or whether it was falsified (paragraph 13 and 12 of judgment RCOMAA 0016/09/CS). [23] The Court finds that evidence that BRALIRWA Ltd presents as the base of its application for review is comprised of tax declaration that was done by Sindikubwabo on the years 1996 and 1997 as well as his accounting books on the year 1997 (cotes 25, 29, 30 and 34-35). However, though those pieces of evidence demonstrate that the totality of the amount of the cash flow is not the equivalent of the money that he demands the payment, cannot be itself constitute evidence to confirm that Sindikubwabo Cyprien had not possessed such money because, though there is no cause as to why that money would have been started being deposited on the code of

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BRALIRWA Ltd before 1997, these pieces of evidence do not settle the matter of the signatures put on 11 purchase order that BRALIRWA Ltd itself accepts not to correspond to the signature specimen that was given to it by Sindikubwabo Cyprien on Octocer 1, 1994 when they started working together. All of that indicates that those pieces of evidence do not settle the disputes between both parties ex-officio. Instead, they increase a number of the grounds to be discussed. [24] The Court finds that by virtue of the provisions of article 186(3o) of Law No 21/2012 of 14/06/2012 as referred to above, admissible evidence for the review is the one which would led the judge to deciding the case otherwise if that evidence was available. This means that it is not evidence which settle disputes between parties first which conditions the Court to declare inadmissible application for review; this is the same reasoning for foreign jurisdictions. For example the Cassation Court of France reasoned that it is not enough for evidence to have been submitted after the adjudication of the judgment subjected to review for its admissibility. Instead, prior to the conclusion of conclusiveness of that evidence, the Court is bound to first assess whether the case would have been adjudicated otherwise if it had been available.1 Legal scholars also teach that evidence which cannot dictate the adjudication of

the case otherwise cannot led to admissibility of the review of the judgment.2 [25] The Court notes also that pieces of evidence that it presents have been discussed in the course of the hearing of the judgment submitted to review as detailed above whereby it took time for assessing their validity comparing them to those which were in the casefile in connection to the issue which was under discussion and the conclusion was drawn that they could bring nothing to the finding of the truth and hence, evidence that the Court come to know about its existence or that it was possible to find them and take time to compare their weight to those at hand and come up with the reasoning that they could bring nothing with regard to deciding the case cannot be considered in return as the one which come to the knowledge of the Court for the first time for application for review. This means that they must not be considered as evidence that were neither presented to the court nor those found just after the adjudication of the case. This reasoning also leads to inadmissibility of application of BRALIRWA Ltd. [26] The Court finds further that Counsel Mhayimana Isaïe explains that he had continuously prying the Court to issue another compelling Sindikubwabo Cyprien to hand in his books of accounting and it was not done and it caused to, after the ruling of the judgment subjected to review, making

the recourse to the Public Prosecution so that he could secure evidence to rely on in for his application while it is clear that this case started at Kigali First Instance Court in 2000 and it reached the Commercial High Court in 2010 and it was decided at the last instance by the Supreme Court in 2010 and BRALIRWA Ltd does neither show what has stopped it from making recourse to the same procedure as that which enabled it to get those pieces of evidence

1 1 1 ”.. en retenant que le caractère décisif de la pièce invoquée n’était pas établie, sans rechercher si le caractère préciputaire de la donation ne se trouvait pas établi par le testament, la cour d’appel a violé l’article 199. Alinéa 2 du code civil.» Cour de Cassation, Chambre Civile 1, 23/10/2991, Bulletin, 1991, II, no 279, p.146. 22 le bon sens recommande de n’accepter [le recours en révision] que dans la mesure où la pièce découverte aurait changé les choses. Si, à raison de son caractère peu décisif, le jugement n’eût pas été différent, le recours n’est pas admis. » Serge Guinchard et Alii, Droit et pratique de la procédure civile, Paris, Dalloz, 2006, p.552.

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within all those ten years nor does it show that it tried it and it did not work while it was aware that it was the sole procedure to take off the hump created by the secret that the tax administrator is obliged to keep for the taxpayer as provided for by article 57 of Law no 25/2005 of 04/12/2005 on tax procedure. In addition, the Court further reasons, he was also aware that recourse to the Public Prosecution would leads the criminal action to keeping in hold civil action apart from the fact that he had another option of postponing the hearing while awaiting for the availability of those pieces of evidence. All of this also demonstrate that BRALIRWA Ltd has purposefully not made recourse to the procedure which could enable it to get evidence that could serve as defence in its proceeding the first instance or at the appellate level and now bases on it for application for review. This also a ground for inadmissibility of its application. [27] The Court finds further that this is the same reasoning followed by the foreign courts. For example the Cassation Court of Belgium which held that application for review becomes inadmissible if the applicant was aware of the grounds which he/she presents as the basis for his her application and that it is worthy to includes in those grounds the pieces of evidence that he did not want to collect before the judgment subjected to review

becomes final while he was in position to get them for example when the concerned party has deliberately neglected to make recourse to state organ to give him necessary information for handling the disputes.3 This also emphasizes inadmissibility of application of BRALIRWALtd. [28] Pursuant to the holdings detailed above, the Court is of the view that application for review of the judgment no RCOMAA 0016/09/CS of BRALIRWA Ltd as rendered by the Supreme Court on November 12, 2010 does not fall in the ambits of article 186 litera 3 of Law No 21/2012 of 14/06/2012 Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure. Hence, application is not admissible. II.2. Whether the counterclaim filed by Sindikubwabo Cyprien can be received and examined. [29] Munyeshema Shuaib Napoléon counsel for Sindikubwabo Cyprien states that though application of BRALIRWA Ltd would be inadmissible would not hinder the Court from awarding Sindikubwabo Cyprien the moral damages amounting to 5.000.000 Frw because, from the case was adjudicated and the judgment became final, BRALIRWA Ltd denied execution. He requests additional 5,546,000 Frw equivalent to 940 days whish elapsed while Equatorial Motor Garage spent acting as a garnishee of the car of BRWALIRWA Ltd which was seized under the name of Sindikubwabo Cyprien as well as 3.000.000 Frw for advocate fees the totality being 13.456.000 Frw. He concluded paring the Court to impose on BRALIRWA Ltd the penalty 200.000 Frw forcing it to pay for everyday of delay of payment as a an adequate procedure of respecting the judicial decisions.

3 3 3 “…la requête civile n’est point ouverte pour des faits dont la partie a eu connaissance avant le jugement, qu’à pareil faits doivent être assimilés ceux dont elle a délibérément omis de recueillir la preuve ; qu’étant acquis, par les constatations mêmes du jugement dont la rétractation est poursuivie, que les défendeurs ont refusé d’introduire une demande de renseignements auprès de l’administration des postes, leur requête civile ne réunit pas les conditions légales de recevabilité… » Monier c. Vanderhoute et Vanhumbeeck, Cour de Cassation de la Belgique, 1ère Chambre, 16 Mai 1974, in Pasicrisie Belge, Bruxelles, Ets Emile Bruylant, 1974, p. 965.

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[30] MHAYIMANA Isaïe counsel for BRALIRWA Ltd replied that there is no basis for the moral damages requested by Sindikubwabo Cyprien. To the issue of the vehicle garnished in the garage, this must not be considered because the order to which this seizure was based were invalidated and that they had return it to BRALIRWA Ltd. However, though it may not go that way,BRALIRWA Ltd would not be held accountable the invoice that was issued was pro forma while it must be EBM and that that invoice was issued to the one Kazigaba André and that they do not demonstrate that the payment was sought from Sindikubwabo Cyprien.

THE VIEW OF THE COURT [31] By virtue of article 108 paragraph 3 of Law No 21/2012 of 14/06/2012 Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure which provides that a counterclaim shall not be admissible if the main claim no longer exists. Inadmissibility of application for review means that all the requests therein must not be assessed. Hence, the Court has no basis to receive and assess the counterclaim that was filed by Sindikubwabo Cyprien. [32] The Court notes however that Sindukubwabo Cyprien hired an advocate so that he could respond to the proceeding before the Supreme Court. Thus, the Court awards in its discretion advocate fees equivalent to 800,000 Frw since this case is completed on the admissibility of the application. III. THE DECION OF THE COURT [33] Decides that application of BRALIRWA Ltd for review of the judgment no RCOMAA 0016/09/CS rendered by the Supreme Court on November 12, 2010; [34] Orders BRALIRWA Ltd to pay to Sindikubwabo Cyprien the fee for the lawyer equivalent to 800.000 Frw; [35] Order BRAKIRWA Ltd to pay the court fees equivalent to 100.000 Frw.