BRD v. NGEZAHAYO et al.

# BRD v. NGEZAHAYO et al.

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-04-10 - Case/document no.: RCOMAA 0076/12/CS - Collection: Supreme Court

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BRD v. NGEZAHAYO et al. [Rwanda SUPREME COURT – RCOMAA 0076/12/CS (Mugenzi, P.J., Kanyange and Nyirinkwaya, J.) 10 April 2015] Law determining jurisdiction of the Supreme Court – Jurisdiction for hearing the second appeal – The document submitted to the court after the closure of the hearing – In case there are documents on which the court based in deciding the case and there no debate was held during the hearing, this constitute a ground for the second appeal before the Supreme Court since the principle of contradiction is not respected – The Organic Law n° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28, paragraph two, in subsection three. Facts: BRD Ltd has sued Ngezahayo and his co-defendants before the Nyarugenge Commercial Court claiming for that they may, jointly, pay to it the debt they have guaranteed that it has given to Rwanda rw’ubu Association. Nyarugenge Commercial Court decided that they have to pay to BRD Ltd the debt amounting to 10,000 $ that PSF has paid for them and 821,901 Frw for damages. Ngezahayo and his co-defendants appealed against that decision before the Commercial High Court which decided that BRD Ltd had to seize the courts requesting for them to pay the debt that it has granted to them and its interests in combination with the guaranty of 10,000 $ granted to them by PSF. BRD Ltd has appealed to the Supreme Court arguing that the Commercial High Court has based its decision on evidence which has been submitted after the closure of the hearing and there was no reopening of the hearing. Ngezahayo and his co-defendants has raised an objection for inadmissibility of the appeal of BRD Ltd arguing that it is not in the jurisdiction of the Supreme Court since the evidence on which BRD Ltd bases, was heard in the first instance. They went on arguing that document only testifies what has been heard. Held: The document which the court bases on in deciding the case while no debate held during the hearing constitute a ground for the second appeal before the Supreme Court, since the principle of defense was not respected. Appeal is in the jurisdiction of the Supreme Court; Hearing is adjourned on 2nd June 2015; Court fees are suspended. Statutes or statutory instruments referred to: Organic Law n° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28, paragraph two, in subsection three. No case referred to.

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Judgment I. BRIEF BACKGROUND OF THE CASE [1] The case started before Nyarugenge Commercial Court, BRD suing Ngezahayo Rutamu Vincent, Kavumba Emmanuel, Ndahumba Jean Baptiste and Umuhoza Francine claiming for them to pay jointly the debt they have guaranteed that it has granted to Rwanda rw’ubu Association, it decided the case on 09/03/2012, and decided that they have to pay jointly the debt of 10,273,768 Frw calculated until on 20/10/2010, encompassing the principal debt, ordinary interests and those for delay, and to pay 821,901 Frw for the damages amounting to 8% of the whole debt, which all makes 11,095,669 Frw. [2] Ngezahayo Rutamu Vincent, Kavumba Emmanuel, Ndahumba Jean Baptiste and Umuhoza Francine appealed to the Commercial High Court which decided that BRD has only to request for the payment of the debt calculated until 31/12/2009 basing on the guaranty of 10,000 $ which has been granted by Private Sector Federation (PSF) as provided for within the article 8 of the Memorandum of understanding (MoU) signed between PSF and BRD in 2010 which modified what was provided for within the previous one signed on 02/08/2007, the interests for delay which have to continue to be calculated from 01/01/2010 until the decision of the case is rendered on 21/09/2012. [3] In rendering the decision, the Commercial High Court has explained that, in case its debtor was already classified in the 5th category of those it has granted the loans and did not pay appropriately, BRD had to seize the courts requesting for the payment of the loan it has granted and its interests, deducting thereon the value of the guaranty of 10,000 $ USD granted them by PSF. [4] BRD appealed to the Supreme Court arguing that it bases its appeal on the article 28 paragraph 2, section three of the Organic Law n° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court since the Commercial High Court has based its decision on the document of MoU submitted after the hearing was closed and there was no reopening of the hearing. The Judge of pre-screening has decided that the appeal of BRD is in the jurisdiction of the Supreme Court basing on that article. [5] The case was publically heard on 03/03/2015, BRD was represented by Barezi Marie Aimée, the counsel, Ngezahayo Rutamu Vincent, Kavumba Emmanuel, Ndahumba Jean Baptiste and Umuhoza Francine were represented Buzayire Angèle, the counsel, the parties debated on the procedural objection raised by the respondents in the appeal. II. ANALYSIS OF LEGAL ISSUE Knowing whether the appeal of BRD is within the jurisdiction of the Supreme Court, on the ground that there is a document submitted to the Commercial High Court after the hearing and it was based on in deciding the case.

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[6] Buzayire Angèle, the counsel for Ngezahayo Rutamu Vincent, Kavumba Emmanuel, Ndahumba Jean Baptiste and Umuhoza Francine argues that the Supreme Court has no jurisdiction of hearing within the second appeal the case since the document of MoU by which the one pleading on behalf of BRD argues to have been submitted after the closure of the debate, it has been heard from the first instance where by his clients argued that BRD has to pay to itself starting from the guaranty of 10,000 USD granted by PSF, and they could not say it without revealing that memorandum. [7] She added that the MoU on which the judge has based in deciding the case, may not be considered as an new evidence or document since it came in testifying what has been heard, this is proven by the fact that nowhere BRD has written to the court stating that it submits a new evidence requesting for the reopening for being debated. [8] Barezi Marie Aimée, the counsel for BRD argues that the procedural objection submitted by its opponents is baseless since the MoU on which they have submitted as an evidence is that of 28/05/2007 which modified that of 28/06/2004, while the one that BRD is referring to, that the judge has requested them after the closure of the hearing and was based on in deciding the case without the reopening of the hearing is that of 30/09/2010 which was not revealed nor debated before the court, this new MoU is far different to the ones which preceded it. THE VIEW OF THE COURT [9] The article 28 paragraph 2, section three of the Organic Law n° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court states that the Supreme Court shall have appellate jurisdiction over cases heard and decided in the second instance which were based on evidence and submissions presented to court after the closure of hearings yet no application to reopen the matter was made. [10] With regard to this case, the document for debate is the MoU of 30/09/2010 signed between PSF and BRD on which the judge has based in deciding that BRD has not to wait for the case to get decided for it to pay itself starting from the guaranty of 10,000 USD, BRD argues that that document was submitted after that the hearing has been closed, while the one pleading on behalf of defendant argues that it may not be considered as a new evidence since it has been heard from the first instance. [11] The court finds, within the documents which composes the file, nowhere it is evident that Ngezahayo Rutamu Vincent, Kavumba Emmanuel, Ndahumba Jean Baptiste and Umuhoza Francine have submitted to the court the MoU of 30/09/2010 which modified that of 28/05/2007 which also has modified that of 28/06/2004, rather it is evident that BRD has submitted it to the court on 13/08/2012, while the hearing was closed on 11/07/2012. [12] The court realises the fact that that document might have been talked about within the hearing even if nothing proves it within the file, it could not make it to be put within the file after the closure of the hearing and based on in deciding the case while it was not revealed to the other party, the fact that the judge has based on it therefore, as it is evident within paragraph 8,9 and 10

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of the court verdict while there was no reopening for the parties to debate on it in the respect of the principle of contradiction within the cases, it gives to this court the jurisdiction of hearing this case in the second appeal as the article 28 paragraph 2, section three of the Organic Law N° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court provides it. III. THE DECISION OF THE COURT [13] Decides that the appeal of BRD is within the jurisdiction of the Supreme Court basing on the article 28 paragraph two, section three of the Organic Law n° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court. [14] Decides that the hearing will continue on 2 June 2015. [15] States that the court fees are suspended.