BUTWARI v. BCR

BUTWARI v. BCR

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2011-07-29 - Case/document no.: RCOMA 0052/10/CS - Collection: Supreme Court

Text

Page 1

BUTWARI v. BCR [Rwanda SUPREME COURT – 2011SC – RCOMA 0052/10/CS (Mukanyundo, P.J., Havugiyaremye and Kayitesi J.) July, 29th 2011] Commercial laws – To hear the case while one of the parties is defaulting – The Court can base the submissions of the respondent that has been submitted despite his since he has handed them over to the other party so as to comment on the during the trial. – Laws Nº 18/2004 of 20/06/2004, article 52 related to the civil, commercial, labor and administrative procedure.. Commercial laws – Admission of the amount of the loan and no objection on its computation – The explanations of the debitor are without merit in case transactions made on her account demonstrate the money he withdrawn and deposit. Commercial law – Keep up counting interest after the credit denunciation – In bank loan contracts, both parties may conset that in case of non execution of the loan contract, the bank can make denunciation of commitments, close her account and the remaining debit continous to generate benefit the whole debit is paid. General conditions of loan opening in Bank, article 18 Fact : The appellant has been accused in the commercial high court by the plaintiff that he had been offered a loan equal to rwf 25, 000,000 on 14/12/2005 which was supposed to be paid by 31/12/2006; he then failed to pay the whole amount of loan. The hearing was held on his absence and was

legally summoned. He lost the case and the court ordered him to pay rwf43.503.867 but he decided to appeal in the Supreme Court saying that the previous judge did not explain his legal bases (evidences and articles of laws) for the decision taken. He didn’t even show the way that money to be paid has been accounted and he admitted to ear the case when the appellant was absent. Held: 1. all words said by the party in the court admitting can be the source of losing the case. The fact the appellant says that the court did not consider all conclusions given when the hearing was held in his absence, he says that he didn’t ask those conclusions to be considered, he says that the article 351 paragraph 7 this cannot be a basis since there is no law prohibiting this or to ask the court, and the fact that in the primary hearing the accused was not present the plaintiff has right to ask the adjournment of the case to another date or to ask the case to be heard although the absence of the accused and the decision can only be based on the conclusions presented.

2. The appellant did not honor the contract because he hasn’t paid the money in due time as it has been agreed in the contract, where the plaintiff decided to remind him to pay. The fact that he said that the judge did not explain the value and time the money was given, it cannot base court’s decision since there is evidences and contract and all withdrawal operations done to the account showing that the money withdrawed by appellant exceed money deposited, because the total amount of the loan was equal to rwf39.548.972 on 21/04/2009, and he admitted that the whole loan was rwf25.000.000.

3. There are no sufficient evidences for appellant since he admitted in the high commercial court the value of the loan he has with the bank and he didn’t criticized anything and the contract

Page 2

cannot be canclled since it appear that the loan was cashier’s loan equal to 25,000,000 and money withdrawed exceed the money deposited as shown by account’s operations done. As stipulated by the general conditions of loan opening in the bank, he was agreed with the bank that in case of none-execution of the contract, the bank will do the denunciation and interest will continue to be accounted. The appeal is not merit. The Court fees paid by the appellant. Statutes and statutory instruments referred to: Laws Nº 18/2004 of 20/06/2004, article 52 related to the civil, commercial, labor and administrative procedure. General conditions of loan opening in Bank, article 18 No Cases referred to: Judgment I. THE BBRIEF BACKGROUND OF THE CASE 1. The case is related to the loan that BCR SA granted to Mr Butwari Ernest on 14/12/2005 equal to rwf 25.000.000 supposed to end by 31/12/2006. Butwari did not honor the contract and the bank asked the high commercial, the hearing was done in the absence of Butwari when the he was legally summoned. The court found well that Butwari Ernest loses the case, and ordered him to pay to BCR the total amount of rwf43.503.869 including court fees.

2. Butwari Ernest appealed against this court decision in the supreme court saying that the judge did not show his decision basis either on the side of evidences or laws, as he said he had shown that the loan contract had expired on 31/12/2006, which ignored by the judge and accounted the loan till 21/04/2009 without showing the way this has been accounted. Also, the court decided to hear the case in his absence and its based his decision to the conclusions presented but butwari had not requested.

3. The hearing was held on 23/06/2011, only BCR was present assisted by Me Gakwaya Etienne, and Butwari Ernest absent but with the evidence that he was legally summoned. Me NDWANIYE Pierre present said that he’s not in the court to assist Butwari, but to present his sick leave. Me Gakwaya said that there is reason to adjourn the case since he was legally summoned and the court has both conclusions for parties. The court decided to hear the case in the absence of Butwari since there is no legally reason for him to have not come in the court.

Page 3

II. THE LEGAL ISSUE OF THE CASE AND THEIR ANALYSIS a.To know if the court can base the decision to the conclusion in case of absence of one party 4. In his conclusions Butwari saying that the high commercial did not consider the content of the article 351 paragraph 7º, of the law nº 45/2007 of 11/09/2007 modifying and completing the law n° 18/2004 of 20/6/2004 because the fact that the court had decided to hear the case in his absence, it could return and base on his conclusions.

5. BCR SA lawyer’s says that Butwari said that he admitted the loan, the also confirmed the loan BCR SA basing to his conclusions submitted himself to high commercial court following the article 110 of the law nº 15/2004 of 12/06/2004 above said « whatever wards admitted in the court have effect and are considered as strong evidence».

6. The court considered that Butwari did not properly interpreted the article 351, paragraph 7º, saying that the court could not base his decision to his conclusions without his request. However, the article is relating to the case of when both parties are present in the court.

7. The court found that the fact that article 52 of the law n° 18/2004 of 20/6/2004 saying that in the case of absence of one party, the other party has right to ask the court to adjourn the case or to ask the court to hear in his absence the n the request can be examined, which means that the court has right to proceed by hearing the case basing on the conclusions. B. To know if there is strong evidences showing the loan value that BCR SA granted to Butwari, the time it has been given and the way it’s done 8. In his appealing file Butwari criticized the high court decision saying that even if the loan is rwf 25,000,000 the plaintiff did not show the court that he had really given that figure, the time he gave and the way he did it and the basis for asking the payment of rwf39.548.972. He said that the court had no evidences in ordering the payment to BCR SA the above said money and his decision is contrary to the article 9 and article 147 of the law n°18/2004 of 20/6/2004 relating to the civil, commercial, labor, and administrative proceedings as modified and completed as well as the article 3 of the law nº 15/2004 of 12/06/2004 relating to evidences and its use in the courts.

9. BCR SA lawyer Me Gakwaya says that Butwari ignored that in the contract he has with BCR SA the nature of the loan granted to him is a cashier loan to help him in his business activities, that money was not taken once, but was taken in different installments the conditions were only to not exceed the amount that agreed with the bank. He explained that Butwari did not honor his contract because he even exceeded the amount that it is when BCR reminded him to pay. He says that the way that Butwari withdraw the money is showed by operations done to his account nº 022-0051 772-01-78 on 15/12/2005 until 21/04/2009 which shows that the total money on the account was rwf39.548.972 equal to the debt that BCR SA requested to be ordered by court.

10. Even if Butwari appealed saying that the loan that the court ordered him to pay did not explain the way it has been done, the time and the value of it. The court found that in the contract papers with reference nº 0410/CRE/ME/1547-2005 of 14/12/2005, BCR SA he wrote to

Page 4

Butwari and both parties signed, it is evident that the total loan was rwf 25.000.000, and that facility is given to him from that day and has to expire on 31/12/2006. Relating the issue of the way the loan has been given, the contract papers above said shows that the loan was supposed to be managed to the account nº 022-0051772-01-78 that Butwari opened himself in BCR, and agreed that the account will remain “creditor”, which was helping him to withdraw the money following his needs of business. Relating to the loan value, as it said that its management will be done to the above account operations done to that account shows that the total amount taken to the account exceed the deposited money because on 21/04/2009 when the bank stopped the total amount was rwf39.548.972.

11. The court found that following the above mentioned reasons Butwari has no reasons for his appeal. C. The fact that BCR continued to account interest after loan denunciation.

12. In the file done assisting Butwari, Me RWIGEMA said that the high commercial court ignored the loan contract that was supposed to expire on 31/12/2006 and confirmed figures that accounted after denunciation on 21/04/2009 without showing the way it is accounted.

13. BCR said that there is no error for the court to have confirmed figures done on 31/12/2006 because that is stipulated by the article 18 of general conditions of loan opening that Butwari had agreed.

14. The court found that what said by Butwari that BCR SA did a denunciation as it appear in his letter to BCR of 10/03/2009 does not mean the cancellation of contract, and stop to account interest, but was to remind him to pay, and the value for his loan, which is evident that BCR SA did not cancel the contract and interest continued to be accounted. also, he had agreed with the bank in the contact that in case of failure of payment the bank will proceed by denunciation, and the account will be closed, the remaining part of the loan to continue generating interest until its payment, as it stated in general conditions of credit opening in the bank. III. THE DECISION OF THE COURT 15. The court found no reason for Butwari’s appeal.

16. The court orders Butwari Ernest to pay BCR SA the debt equal to rwf39.548.972 including 3 954 897 of court fees with total of rwf43.503.869 17. The court orders him to pay rwf 21.500 of court fees.

18. The court says that the trial RCOM 0205/09/HCC decided on 17/10/2010 by the Commercial High Court is not modified.