EAR/ DIYOSEZI YA SHYIRA v. SECYUGU

# EAR/ DIYOSEZI YA SHYIRA v. SECYUGU

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-01-15 - Case/document no.: RCA 0003/13/CS - Collection: Supreme Court

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EAR/ DIYOSEZI YA SHYIRA v. SECYUGU [Rwanda SUPREME COURT – RCA 0003/13/CS (Mugenzi, P.J., Karimunda and Gatete G., J.) January15, 2016] Civil procedure – appeal – the consequences for appealing against the judgment without interest – the appeal is inadmissible when the appellant had no interest to appeal – Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 2 and 162. Fact: Secyugu filed a summary procedure requests to the Court to order that the money which will be resulted from the sold of the Hotel ishema would be deposited on the account of the court in case there is nothing decided on 23 May 2013 of the appeal of EAR / DIOCESE of Shyira for the arbitrary committee award that ruled that EAR / DIOCESE of Shyira was unlawfully terminated the lease contract of Old Cathedral which they concluded; he won it and be awarded the damages. High Court held that the summary procedure has no merit because there is no urgency in it in case the asset which the defendant states that the asset to be seized the asset the owner does not have the problem with him, therefore those of ordering that the money which will come from selling the Hotel ISHEMA, does not help anything on what concerns the debt which Secyugu sues EAR. EAR / DIOCESE of Shyira appealed to the Supreme Court in stating that the claim that of Secyugu is not the summary procedure of the cross appeal, rather it is the main claim which should be submitted to the primary Court, then after Secyugu disregarded it and remains the claim at the High Court, it requests the Supreme Court to take the decision for not seizing the money which will come from the selling of that Hotel then it overturns the decision of the High Court. Secyugu defends in stating that there is no where the judge ordered the seizure of that money rather he finds that the appealed judgment Nº RC 0005/13/HC/MUS ordered that those money should not be seized, therefore he realises that there is no motive EAR had for filling the appeal. Held: 1. The appeal is inadmissible when the appellant had no interest to appeal therefore the appeal of EAR / DIOCESE of Shyira should not be admitted because he appealed for the judgment he won for. 2. The counsel fees and the procedure fees shall be awarded in court discretion in what are requested are excessive. Appeal is not admitted; With the court to the appellant. Statutes and statutory instruments referred to: Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 2 and 162.

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Decree law 30/07/1888 relating to Contracts or obligations, article 258. No cases referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] This judgment commenced at the High Court, chamber of Musanze (RC 005/13/HC/MUS), in summary procedure Secyugu Pierre Claver requests to the Court to order that the money which will be resulted from the sold of the Hotel Ishema would be deposited on the account of the court in case there is nothing decided on 23 May 2013 of the appeal of EAR / DIOCESE of Shyira for the arbitrary committee award that ruled that EAR / DIOCESE of Shyira was unlawfully terminated the lease contract of Old Cathedral which they concluded; he won it and be awarded the damages. [2] On 06 August 2013, High Court held that the summary procedure of Secyugu Pierre Claver has no merit, because it finds that there is no urgency in his claim because to seize the asset of the person who does not have the problem with Secyugu, it does not help Secyugu the debt which he sues EAR, it demonstrated that ISHEMA Hotel has the legal personality which is different from EAR / DIOCESE of Shyira, which was not the part in the judgment of the arbitration committee, in main judgment and in the summary procedure. It also finds that Secyugu did not be able to demonstrate to the Court that the Chapel of EAR situated in front of EAR Guest House also was sold while it is the basis of the contract which Secyugu entered into with EAR. [3] EAR DIOCESE of Shyira appealed to the Supreme Court in stating that the claim of Secyugu is not the summary procedure of the cross appeal, rather it is the main claim which should be submitted to the primary Court of Muhoza, Secyugu disregarded it and remains the claim at the High Court, it requests the Supreme Court to overturn the decision of the High Court. [4] Hearing was conducted in public on 28 June 2016, Counsel Zitoni Pierre Claver represents EAR DIOCESE of Shyira whereas Counsel Nkuba Milton represents Secyugu Pierre Claver. II. ANALYSIS OF THE LEGAL ISSUES Determining whether EAR DIOCESE of Shyira has the interest to appeal for the case it won for [5] At the beginning Zitoni Pierre Claver, the Counsel for EAR DIOCESE of Shyira who appeals was given the time, and states that after deciding about seizing the money which will come from selling Hotel ISHEMA by the High Court, chamber of Musanze, they appealed against the Supreme Court for requesting it to order for seizing that money, and overturns the decision of that Court. He states that the decision of seizing was taken by the judge Shoneri.

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[6] Counsel Nkuba Milton states that the judgment which Counsel Zitoni mentions that it was rendered by the judge Shoneri, it is concerned with disqualifying a judge; there is no where the judge ordered for seizing that money. He realizes rather that the judgment they appealed for is Nº RC 0005/13/HC/MUS that it ordered that the money should not be seized, therefore he finds that EAR had not motive for appealing, Counsel Zitoni also realizes it. VIEW OF THE COURT [7] Article 2 of Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure provides for that a claim cannot be accepted in court unless the plaintiff has interest to bring the suit, that of 162, paragraph one of that law also provides for that any person who was a party to the proceedings in the first instance may appeal the judgement if he/she has an interest therein, except when the law provides otherwise. [8] Zitoni, the Counsel for EAR DIOCESE of Shyira agreed that it is true that the statement of his colleague counsel NKUBA Milton that the one who appealed against the judgment has no motive and interest. [9] The Court is finding that EAR appealed against the judgment RC 0005/13/HC/MUS rendered on 06 August 2013, its decision indicates that EAR won the case because it ordered that the money which will be resulted from selling the HOTEL ISHEMA should not be seized while Secyugu requested to that Court to order to seize it. [10] Therefore the Court is finding that EAR DIOCESE of Shyira has no interest in appealing the judgment he won; that is the reason why its appeal should not be admitted. Concerning the requested damages [11] Nkuba Milton, the Counsel for Secyugu states that his client continues to be dragged into lawsuit, therefore he requests for it the damages of 3,000,000Frw, 1,000,000Frw of the counsel fees and 1,000,000Frw of the procedure fees, all together are amounting to 5,000,000Frw. [12] Zitoni, the Counsel for EAR DIOCESE of Shyira realises that the requested damages are excessive, thus he realises if it will be awarded must be produced the evidence. VIEW OF THE COURT [13] Article 258 of 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. [14] The court is finding that requested damages are enough because Secyugu was dragged into vexatious litigation, it led him to search a counsel who does the follow up of the case, and thus he must be paid for it. But it finds that it must be awarded into discretion, since what are requested are excessive; that is why Secyugu should be given 1,000,000Frw of the expenses of the Counsel fees and procedure fees on this instance.

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III. DECISION OF THE COURT [15] It holds that the appeal of EAR DIOCESE of Shyira is not admitted; [16] It orders that EAR DIOCESE of Shyira to pay the damages of 1,000,000Frw to Secyugu Pierre Claver; [17] It orders it to deposit the court fees of 100,000.