BURIZA v. DIVERSEY EAST& CENTRAL AFRICA Ltd

# BURIZA v. DIVERSEY EAST& CENTRAL AFRICA Ltd

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-01-09 - Case/document no.: RCOMAA 0024/14/SC - Collection: Supreme Court

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BURIZA v. DIVERSEY EAST& CENTRAL AFRICA Ltd [Rwanda SUPREME COURT – RCOMAA 0024/14/SC (Kanyange, P.J., Gakwaya and Hitiyaremye, J.) January 9, 2015] Laws regulating the competence of the Supreme Court – The competence of the Supreme Court – The evidence submitted after the closure of the hearing – The party cannot argue that the court decided the case basing on the evidences submitted after the closure of the hearing in case he does not prove where the judgment states about those evidences, Organic Law N°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28, paragraph 2, 3. Facts: Diversey Ltd and PCP Ltd made a contract. According to that contract Diversey East & Central Africa Ltd would supply to P.C.P. Ltd the goods and the later gives it the interest of 13,04% of the profit. P.C.P. Ltd has sued Diversey before Nyarugenge Commercial Court arguing that it paid to it only 152.366 USD while it would pay 256.249 USD, and it remains 103.888,9 USD it has not paid. Nyarugenge Commercial Court decided that Diversey has to pay to P.C.P. Ltd 45,453.67 USD and the moral damages. Diversey Ltd appeal before the Commercial High Court, arguing that there was no remaining amount to be paid to P.C.P. Ltd. The Court decided the judgment and it declared that Diversey owed no debt to P.C.P. Ltd, and it condemned P.C.P. Ltd to pay to Diversey the damages and the lawyer’s fees. Buriza, the Manager of PCP Ltd appealed before the Supreme Court arguing that the Commercial High Court decided the case basing on the evidences submitted after the closure of the hearing. Diversey says that the ground on which the plaintiff raises has no reality because she does not prove where the appealed judgment states about that evidence they base on which they claim to have been submitted after the closure of the court hearing. She goes on saying that the appealed judgment falls within the jurisdiction of the Supreme Court because the Commercial High Court decided the case basing on the documents submitted after the court hearing was closed without the reopening of the court hearing for all parties to debate on it. Held: 1. The appeal is not in the competence of the Supreme Court even if the registrar of Commercial High Court received the documents submitted after closing the hearing in case it is evident that the Commercial High Court did not base on them. Appeal does not in the competence of the Supreme Court. Court fees to the plaintiff. The Statute and 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 2 and 3.

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No case referred to: Judgment I. BRIEF BACKGROUND OF THE CASE [1] Diversey East & Central Africa Ltd and Professional Cleaning Product (P.C.P. Ltd) made a contract which was signed on 01/01/2011 and 05/01/2011 and an additional contract which was signed by both parties on 23/08/2012. According to that contract, P.C.P. Ltd would have been given the goods by Diversey East & Central Africa Ltd for selling them and later after to be given the interest of 13,04% of the profit which was called “distributor margin’’ for the goods that Diversey East & Central Africa Ltd has brought in Rwanda from 01/01/2011 until 31/12/2012. [2] P.C.P. Ltd sued Diversey East & Central Africa Ltd before Nyarugenge Commercial Court arguing that it paid to it only 152.366 USD while it would pay 256.249 USD, and it remains 103.888,9 USD it has not paid. [3] Nyarugenge Commercial Court decided the judgment RCOM 0803/13/TC/Nyge on 06/11/2013, it decided that Diversey East & Central Africa Ltd has to pay to P.C.P. Ltd 45,453.67 USD it has not paid, and 1,000,000 Frw for the moral damages and 200,000 Frw for the procedural and lawyer’s fees. [4] Diversey East & Central Africa appeal before the Commercial High Court on 03/I2/2013, arguing that there was no remaining amount to pay to P.C.P. Ltd, instead the court has based on untrue calculations and on false motivation in deciding the non-paid amount, and condemned it to pay 1.000.000 Frw for damages and 200.000 Frw for the lawyer’s fees, and if there has been correct calculations and discretion of the court, it would not have been condemned to pay this amount. [5] The Commercial High Court decided the judgment RCOM A 0535/14/HCC on 14/03/2014, it decided that Diversey East & Central Africa Ltd owed no debt to P.C.P. Ltd, and it condemned P.C.P. Ltd to pay to Diversey East & Central Africa Ltd 700,000 Frw. for the damages and the lawyer’s fees. [6] BURIZA Espérance was not satisfied with the verdict of the judgment and appealed before the Supreme Court arguing that the Commercial High Court decided the case basing on the evidences submitted after the closure of the hearing. [7] Diversey East & Central Africa Ltd raised an objection that nowhere in the judgment appealed against that the Commercial High Court decided the case basing on the evidences submitted after the closure of the court hearing. [8] The case was publically heard on 25/11/2014 by the Supreme Court, Me RUKUNDO Emile pleading on behalf of BURIZA Espérance while Me KABERA Johnson pleaded on behalf of Diversey East & Central Africa Ltd, and the parties only debated on the objection.

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II. ANALYSIS OF LEGAL ISSUES To know whether BURIZA Espérance’s appeal falls within the jurisdiction of the Supreme Court [9] Me KABERA Johnson says that the ground on which the plaintiff raises has no reality because she does not prove where the appealed judgment states about that evidence they base on which they claim to have been submitted after the closure of the court hearing, that the judgment she appealed against clearly explains its motivation and that it is evident that it has based on the documents revealed from the Commercial Court which are Professional Cleaning Products Payment Summary by Diversey East and Central Africa Ltd and PCP/Diversey Reconciliations at July 2012. [10] He goes on saying that those documents they provided with the court were in the file from the Commercial Court, that on ‘‘Cote 62‘‘of the file of the Commercial Court there is a similar document to that they claim to have been submitted after, and that it has been contradicted when it was revealed by Diversey East & Central Africa Ltd and the judge did not understand it well which is the reason why they appealed before the Commercial High Court. Furthermore in the copy of the appealed judgment, on the page 5 paragraph 14 and 15, states about the document from the Commercial Court. [11] Regarding the explanations about that document, he says that they have submitted them in the first instance court since that paper was already in the court, and that the annotations thereon are the remaining amount that Diversey East & Central Africa Ltd owed to P.C.P. Ltd. [12] RUKUNDO Emile, the counsel, says that the judgment appealed against was decided at the second level instance by the Commercial High Court, and it falls within the jurisdiction of the Supreme Court basing on the article 28,paragraph 2, 3ᵒ and the article 32 of the Organic Law N° 03/2012/OL of 13/06/2012 determining the organisation, functioning and jurisdiction of the Supreme Court, because the Commercial High Court decided the case basing on the document submitted 5/3/2014, and the court hearing was closed on 10/2/2014, without the reopening of the court hearing for both parties debate on it. [13] He explains that the documents which were submitted before are not similar to those submitted after because there some that Diversey East & Central Africa Ltd added on and even that if those documents were in the file there was no reason to submit them again more importantly it is said that the judge didn’t clearly understand it. He goes on saying that those documents were based on and caused BURIZA Espérance not to get the amount she has won. THE VIEW OF THE COURT [14] The article 28,paragraph 2, 3 of the Organic Law N° 03/2012/OL of 13/06/2012 determining the organisation, functioning and jurisdiction of the Supreme Court provide for that «the Supreme Court shall also have appellate jurisdiction over cases heard and decided in the second instance by the High Court, the Commercial High Court or by the Military High Court if such cases are based on evidence and submissions presented to court after the closure of hearings yet no application to reopen the matter was made».

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[15] The court realises that the document that BURIZA Espérance claims to have been submitted after the closure of the hearing it is on the ‘‘cote 73“ of the file of the Commercial Court relating to the table explaining amount that both parties owed each other. [16] The Supreme Court realises again that the table which has been submitted from the Commercial Court but its difference with that submitted on 5/3/2014 after that the Commercial High Court closed the hearing are other explanations added thereon demonstrating the amount both parties owed to each other but without any change on the calculations. [17] Moreover, the Supreme Court realises even though the registrar of the Commercial High Court did receive the document mentioned by BURIZA Espérance, the analysis of the judgment appealed against demonstrates that in rendering its verdict, the Commercial High Court did not base on the document. [18] Basing on the article 28, paragraph 2, 3 of the Organic Law N° 03/2012/OL of 13/06/2012 above mentioned, which BURIZA Espérance bases on and on the explanations mentioned, the Supreme Court realises that in case the Commercial High Court did not base on that document submitted after the closure of the hearing, her appeal does not in the jurisdiction of the Supreme Court. III. THE DECISION OF THE COURT [19] Decides that the appeal lodged by BURIZA Espérance does not fall in the jurisdiction of the Supreme Court; [20] Orders BURIZA Espérance to pay the court fees equal to 100,000 Frw.