ECOBANK v. MATABARO

ECOBANK v. MATABARO

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2013-12-13 - Case/document no.: RCOMA0091/11/CS - Collection: Supreme Court

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ECOBANK v. MATABARO [Rwanda SUPREME COURT – 2013SC – RCOMA0091/11/CS (Mukanyundo, P.J., Hatangimbabazi and Gakwaya, J.) December,13th 2013] Civil law – Contract- Inexecution of the loan contract – Validity of a loan contract without a signature of one party. Civil law - The penality forcing to pay. Facts: The respondent was sued for inexecution of a short term loan contract given to her by the appelent.the appelent based on the letters proving that she was given a loan and the banking history proving that she had been paying that loan and later failed .The Commercial High Court ruled that the appelent loses the case and that the respondent and others win the case. The plaintiff was not satisfied by the decision of the case and appealed in Supreme Court alleging that the Commercial High Court did not consider the evidences given to it proving that the respondent had been given a loan. Held: The fact that the respondents say that they did not sign on the loan contract can not be considered as an evidence that they had not been given a loan when there are other evidences proving that they have been given a loan.. When the respondents cannot contradict the statements proving that they had been given a loan, they are considered as valid. The penality forcing to pay becames invalid as long as nothing proves that a person against whom the related claim directed will not execute the

court order. The appeal granted; The appealed case is totally changed ; The courts fees to the respondent. No Statutes and statutory instruments referred to. No Cases referred to. Judgment I.BRIEF BACKGROUND OF THE CASE [1] ECOBANK Ltd says it entered into loan contract with Matabaro Violet, and gives her a loan of 7.950.000 that should be paid in one month and said that Matabaro asked this loan on behalf of the company of ARONEGA she was representing with intention of supplying the office

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materials for the tender he was given by MININTERE, but later, she did not manage to pay it and that’s why it filed against him in the Commercial High Court. [2] The Commercial High Court heard the case on 13th July,2011,and ruled that the evidences provided by ECOBANK Ltd are not enough to convince the judge that the loan said to be given to Matabaro has been there ,and decided that ECOBANK loses the case while Matabaro Violet and ARONEGA wins the case. [3] ECOBANK Ltd was not satisfied that decision and appealed in the Supreme Court saiying that the Commercial High Court disregarded the evidences proving that Matabaro had been given a loan as provided to it. [4] The case was heard on 5th, November,2013, ECOBANK Ltd represented by the Counsel BUZAYIRE Angele while Matabaro Violet was absent, but having been duly summoned, at the level that she thrice summoned for the preliminary hearing, but refused to appear and didn’t even provide a defensive submissions for the appeal of ECOBANK Ltd and the Court took the decision to decide the judgment in absentia. II.THE ANALYSIS OF THE LEGAL ISSUE OF THE CASE To know if there are evidences proving that Matabaro had been given a loan by ECOBANK Ltd [5] The counsel of ECOBANK Ltd, in its court submission and the pleadings before the court ,says that the judge of the Commercial High Court did not consider the evidences provided to him/her

by ECOBANK Ltd proving that Matabaro had been given a loan said in this case, including the letter proving the bank accepts to give her a loan and the banking history but later failed to pay after paying 12 000.000 Rfw [6] Concerning what the judge said that ECOBANK Ltd didn’t bring a loan contact signed by Matabaro, the counsel said that it is not valid since the loan contract is not the only evidence proving that someone had been given a loan, when there are other evidences mentioned above given to the judge, but didn’t talk about them at all. [7] He added that what the judge said that there is no evidence that what the bank asked Matabaro did not fulfill them, is not valid, since the fact of not fulfilling the requirements, should be the reasons for not giving her a loan as its client who wished a loan in an urgent way to finish the tender she was given, especially that in the letter of 29th November 2005 giving her the loan,there is no provision stating that in case of failure to fulfill the requirements, it would be a ground for not granting her that loan. [8] The counsel of ECOBANK Ltd concluded requesting that Matabaro Violet should be ordered to pay 17.660.806 Rfw including the ordinary debt and its benefits, procedural fees and the counsel fees equal to 3 000 000 Rfw, and be given a penalty enforcing to pay the debt equal to 1% of the whole debt per day of being late. COURT’S VIEW

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[9] The file of the case shows that in the letter of 21st November,2005 that she wrote to the Director General of BCDI(changed to be ECOBANK Ltd),Matabaro Violet /ARONEGA Stationery ,requested for a short term loan that she called “temporally overdraft”(decouvert temporaire) equal to 7.950.000 frw, and on 29th November,2013 and her request was accepted to be paid in one month [10] The file of the case shows again that in the letter of 24th November,2008,ECOBANK Ltd that was called BCDI wrote MATABARO Violet /ARONEGA Stationery, reminding her that She did not fulfill the contract of loan she was given and that she is required to fulfill it less than seven days, and pays the ordinary debt, all them equal to 23.597.045 Frw counted until 20th November,2005 [11] In addition to this, in the letter of 19th August,2009, ECOBANK wrote to Faroh NDAHIRO who is said to be the husband of MATABARO Violet, telling him that the bank accepted to reduce the interests of the loan to MATABARO Violet and ARONEGA Stationery and that they might have paid the remaining sum of 17.216.785 Frw not later than 28th September,2009,and if not fulfilled ,they will be taken to courts. [12] The Court finds that all writings abovementioned, since Matabaro Violet and ARONEGA Stationery have never contradicted, there is no ground the court cannot consider them as valid, proving that there is a debt of 7.950.000

frw she asked relating to the “ decouvert temporaire”but they didn’t pay as it is said by the representative of ECOBANK ,and ,therefore, they must pay the debt as ECOBANK counted it in its court submission which is equal to 17.660.806 frw including the ordinary debt and its benefits. [13] The Court finds again that ECOBANK has right to procedural fees and the counsel fees since the fact of going in courts has derived from failure of Matabaro and ARONEGA Stationery to fulfill what was consented ,it required them to look for an advocate but this sum will be assumed in the attention of the Court instead of being 3.000.000 Rfw without explanations and which are much money and ECOBANK may be given 500.000 Rfw of procedural fees and 800.000 Rfw as counsel fees for all instances. [14] Concerning what ECOBANK asked that Matabaro Violet and ARONEGA stationery be given the penalities to enforce them to pay ,the Court finds that it is valid since there is no evidence that they will not execute the court decision COURT’S ORDER [15] Rules that the appeal of ECOBANK Ltd is admissible and is with merit [16] Orders MATABARO Violet and ARONEGA stationery to pay ECOBANK Ltd an amount of 17.660.806 Rfw including the ordinary debt and its benefits. [17] Orders Matabaro Violet and ARONEGA Stationery to give ECOBANK Ltd an amount of 500000 Rfw of procedural fees and 800000 of counsel fees in all instances.

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[18] Orders MATABARO Violet and ARONEGA Stationery to pay the court fees equal to 42.700 Rfw including those of the Commercial Court; [19] Rules that the appealed case is totally changed.