NTAWERA v. NTAGANDA

# NTAWERA v. NTAGANDA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-09-18 - Case/document no.: RCAA 0020/15/HC/KIG - Collection: High Court

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NTAWERA v. NTAGANDA [Rwanda HIGH COURT – RCAA 0020/15/HC/KIG (Nzabonimana, P.J.) September18,2015] Law determining the jurisdiction of the Courts – jurisdiction of the High Court – the case whereby the second appeal is admitted by the High Court – the fact that there is the grounds of appeal which could be appealed but not done in the previous Court of the one which is appealed against should not be considered as the ground of the judgment which is not explained that can be led her second appeal be admitted – Organic Law Nº 51/2008/OL of 09/09/2008 determining the organization, functioning and jurisdiction of courts, article 106. Facts : This judgment began to the primary court of Kacyiru whereby Ntawera sued Ntaganda, Sindambiwe, Nyirakimonyo and Buturutse because they bought and sold the properties which do not belong to them and also she did not give to them the power as the owner of the properties, the Court denied to admit her claim basing on the fact that Ntaganda won for the subject matter in the other judgment and she did not apply the third part opposition. NTAWERA appealed to the intermediate Court of Gasabo and held that her claim has no merit; she appealed again in this Court in stating that the judgment which is subject to appeal should be considered as it does demonstrate not any ground of its basis because it ruled about denying the judgment on one person but it did not pronounce about the other parties Ntaganda defends himself in stating that t the subject matter was the one and the deposited court fees is one also, therefore the judge should not differentiate the subject matter while it is one; also Sindambiwe argues that the filed one claim, indeed if they realized it is not the case appellant would be appealed at Intermediate Court whereas Nyirakimonyo and Buturutse state that Ntawera should be appealed against those at the Intermediate Court, the fact she did not appeal against them she should not say that the judgment is not explained. Held : the fact that there are what should be appeal at the previous Court of the one he/she appealed in, Court should not have the basis for examined her appeal in case the decision she mentions was not appealed so that it would be decided on by previous court of this therefore it should not considered as the judgment which is not explained that led her second appeal to be admitted. Reject the appeal. With the Court fees to the appellant. Statutes and statutory instruments referred to: Organic Law Nº 51/2008/OL of 09/09/2008 determining the organization, functioning and jurisdiction of courts, article 106 Decree law 30/07/1888 relating to Contracts or obligations, article 258 No cases referred to.

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Judgment I. BRIEF BACKGROUND OF THE CASE [1] This judgment began to the primary court of Kacyiru whereby Ntawera sued Ntaganda Jean Baptiste, Sindambiwe Simon, Nyirakimonyo Josephine and Buturutse Emmanuel because they bought and sold the properties which do not belong to them and also she did not give to them the power as the owner of the properties, the Court dinied to admit her claim basing on the fact that Ntaganda Jean Baptiste won for the subject matter in the other judgment and she did not apply the third part opposition. [2] NTAWERA Therese appealed to the intermediate Court of Gasabo, also it held that her claim has no merit and it sustained the rulings of the appealed judgment. [3] Ntawera Therese was not satisfied with those rulings again she appealed at this Court, her claim was recorded on RCAA 0020/15/HC/KIG. She states that the judgment which is subject to appeal should be considered as it does demonstrate not any ground of its basis because it ruled about denying the judgment on one person but it did not pronounce about the other parties. [4] The Court must examine whether that ground must led the appealed judgment to be considered as it does not demonstrate any ground of its basis so that her second appeal should be admit on the basis of the provision of article 106, 1o of the Organic Law Nº 51/2008/OL OF 09/09/2008 determining the organization, functioning and jurisdiction of courts. II. LEGAL ISSUE Determining whether the argument of the appellant that the fact the Court did not admit the claim on one person but did not pronounce about the parties is the ground which led to the admission of the second appeal on the basis of the provision article 106, 1o of the Organic Law Nº 51/2008/OL OF 09/09/2008 determining the organisation, functioning and jurisdiction of courts. III. ANALYSIS OF THE LEGAL ISSUE [5] Counsel Nkundabatware Albert argues that basing on article 106 OFCJ paragraph one whereby the judge did not set out whatsoever the basis for decisions, whereby he explains that in primary court Ntawera filed a claim against many persons, and it raised the objection concerned with the fact that Ntawera the subject matter which she files for there is another judgment which gave it to Ntaganda and it was become final. The fact that it was ruled against one person but it did not pronounce about others, also at intermediate Court the judge ruled about that objection. [6] Ndahimana Jean Bosco, the counsel for Ntaganda states that the subject matter wasthe one and the deposited court fees is one also, therefore the judge should not differentiate the subject matter while it is one.

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[7] Mugemanyi, the counsel for Sindambiwe also states that they submitted one claim, also if they realized that it is not like that the plaintiff would be appealed against it at the intermediate Court, she should not do at the first time while it is in second appeal. [8] YANKURIJE Dative, the counsel for Baturutse Emmanuel and Nyirakimonyo Josephine states that the judgment was enough motivated the fact that the respondents are many but the Court took the decision against one person , the plaintiff should be appealed against those at the Intermediate Court, the fact she did not appeal against them she should not say that the judgment is not explained. VIEW OF THE COURT [9] The Court is finding that the arguments of Ntawera Therese that Court did not pronounce about the other parties rather it decided for one person, it would be appealed at the previous Court because the decision she mentions was decided at the primary Court but she did not appeal against it, therefore this Court should not have the basis for examined her appeal in case the decision she mentions was not appealed so that it would be decided on by Intermediate Court. [10] Article 106, 10 of Organic Law Nº 51/2008/OL OF 09/09/2008 determining the organization, functioning and jurisdiction of courts as it was amended to date, stipulates that High court hears appealed civil cases heard on the second instance by the Intermediate Court when such cases: 1° do not set out whatsoever the basis for decisions, are based on non existing laws or were pronounced by incompetent court. [11] The Court bases on that article, and on the motivation of the none paragraph, it finds that the fact that the Court did not admit the claim for one person but declare nothing on the other parties as she says it would not be considered as the judgment which is not explained that led her second appeal be admitted, therefore it is not admissible, the appealed judgment is sustained. Concerning damages [12] The Counsel for Buturutse Emmanuel and Nyirakimonyo Josephine requests the Court that it should award to her 500,000Frw of the procedural fees and 1,000,000Frw of the Counsel fees all together are equal to 1,500,000Frw. [13] The Counsel for Ntaganda Jean Baptiste also requests the Court that it award to him 1,700,000Frw of the Counsel fees and procedural fees. [14] Basing on article 258 of the civil code book III provides for that any act of man, which causes damage to another obliges the person by whose fault it happened to repair it, the Court is finding that in discretion of the Court Ntawera Therese should give to Buturutse Emmanuel and Nyirakimonyo Josephine 600,000Frw which includes counsel and procedural fees which are awarded in court discretion because what is requested are excessive. [15] Basing also on that article, and on its discretion it is finding that Ntawera Therese should give to Ntaganda Jean Baptiste 600,000Frw which includes counsel and procedural fees.

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IV. DECISION OF THE COURT [16] Rejects that the appeal of Ntawera Therese; [17] Sustains the rulings of the judgment RCA 0364/14/TGI/GSBO rendered by the Intermediate Court on 06 February 2015; [18] Orders Ntawera Therese to give to Buturutse Emmanuel and Nyirakimonyo Josephine 600,000Frw that includes the counsel and procedural fees. [19] Orders also her to Ntaganda Jean Baptiste 600,000Frw which includes counsel and procedural fees.

[20] Declares that the court fees which Ntawera Therese deposited are on her side. [21] Declares that this judgment is not a subject to appeal.