ENTREPRISE ECOTIBAT v. NYIRANDIKUBWIMANA engl

# ENTREPRISE ECOTIBAT v. NYIRANDIKUBWIMANA engl

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-05-23 - Case/document no.: RCAA0027/13/CS - Collection: Supreme Court

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ENTREPRISE ECOTIBAT v. NYIRANDIKUBWIMANA [Rwanda SUPREME COURT – RCAA0027/13/CS (Mukanyundo, P.J., Mukamulisa and Gatete G., J.) May 23, 2014]. Jurisdiction of Courts – Jurisdiction of the Supreme Court – Objection – Objection of lack of jurisdiction – Loosing the case based on similar grounds – In case the first instance court analysed one legal issue while the appellate court analyses and tries several different legal issues; the grounds and motivations relied on by these two different courts are not similar – Organic Law N°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28(5º). Facts: Nyirandikubwimana sued Entreprise ECOTIBAT in the Intermediate Court of Nyarugenge alleging that it ruined her plot of land in the course of construction of the road and requested for compensation for its rehabilitation. This Court ordered Entreprise ECOTIBAT to pay 102,328,535Frw to Nyirandikubwimana for its rehabiliation and 1,000,000Frw for moral damages and counsel fees. Entreprise ECOTIBAT was not satisfied with the decision and appealed against it to the High Court, which upheld the decision of the Intermediate Court and ordered ECOTIBAT to pay Nyirandikubwimana 300,000Frw as counsel fees at appellate level . ECOTIBAT was not satisfied again with the decision and appealed against it to the Supreme Court and during the hearing, Nyirandikubwimana raised an objection of inadmissibility of Entreprise ECOTIBAT’s appeal arguing that the Supreme Court lacks jurisdiction to hear its appeal due to the fact that it lost the case in the first and second instances basing on similar grounds as provided for by article 28, 5º of the Organic Law N°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court. Entreprise ECOTIBAT argues that Nyirandikubwimana misinterpretes the article 28, 5º she based on her argument, because she only considers the decision of the courts while the law states the grounds relied on and that the grounds relied on by the previous courts are not similar because the Intermediate Court adressed only one legal issue relating to whether Entreprise ECOTIBAT should be ordered to pay Nyirandikubwimana damages for her ruined plot of land, whereas the High Court adressed several legal issues. Held: 1. Based on the fact that the Intermediate Court analysed a single legal issue relating to know whether Entreprise ECOTIBAT should be ordered to pay Nyirandikubwimana damages for her ruined plot of land whereas the High Court analysed several legal issues including the forced intervention of Kicukiro district and the one relating to the default by the Intermediate Court to visit the site as it was requested for by Entreprise ECOTIBAT; therefore the grounds based on by these two courts are not similar. 2. The appeal of Entreprise ECOTIBAT which lost the case in two previous courts for different grounds falls into the jurisdiction of the Supreme Court, therefore the objection of lack of jurisdiction raised by Nyirandikubwimana has no merit merit. Objection lacks merit. The hearing of the case in merit will proceed. Statutes and statutory instruments referred to:

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Organic Law N°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28(5º). Case law referred to. Gatsibo District v. Abaturage 14; RADA A 0012/12/CS rendered by the Supreme Court on14 June 2013 Government of Libya v. Registrar General of RDB and SOPROTEL;RCOM AA 0002/14/CS, rendered by the Supreme Court on 29 April 2014. Judgment I. BRIEF BACKGROUND OF THE CASE [1] Nyirandikubwimana Espérance filled a case against ECOTIBAT Entreprise before the Intermediate Court of Nyarugenge requesting it to pay her damages for rehabilitation of plot n° 10120 which was ruined by that company in the course of constructing Kimisange road. She adds that she was granted this plot by Kicukiro district and holds its construction permit, [2] The court ordered ECOTIBAT Entreprise to pay Nyirandikubwimana Espérance 102,328,535Frw for rehabilitation of that plot of land and to pay her 1,000,000Frw for moral damages and the lawyer’s fees. [3] ECOTIBAT appealed to the High Court sitting in Kigali which upheld the ruling of the Intermediate Court and ordered it to pay Nyirandikubwimana 300,000Frw as lawyer’s fee on the appellate level. [4] ECOTIBAT was not satisfied with the ruling and appealed to the Supreme Court. The hearing was held in public on 6 May 2014, ECOTIBAT represented by Counsel Ngarambe Raphaël and Counsel Mbaga Tuzinde Mbonyimbuga while Nyirandikubimana was represented by Counsel Dukeshimana Béata and Nizeyimana Léopold. [5] Before the appeal case was heard in merit, the counsels for Nyirandikubwimana raised an objection of inadmissibility of the appeal lodged by ECOTIBAT because it lost the case before the two previous courts on similar grounds. II. ANALYSIS OF THE OBJECTION RAISED IN THE CASE To determine whether the objection on lack of jurisdiction of the Supreme Court raised by Nyirandikubwimana has merit. [6] Counsel for Nyirandikubwimana states that the appeal lodged by ECOTIBAT does not fall in jurisdiction of the Supreme Court due to the fact that the grounds based on when they lost the case before the two previous courts are similar because she filled a case against ECOTIBAT to the Intermediate Court alleging that it ruined her plot of land and it lost the case. In addition she says, the High Court upheld the ruling of the appealed judgment and the objection is based on article 28, 5º of the Organic Law Nº 03/2012/OL determining the organization, functioning and jurisdiction of the Supreme Court.

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[7] Counsel for ECOTIBAT argues that the opponent misinterpreted the provision of the aforementioned article 28, 5º and that they only consider the ruling of the court while the law provides for the grounds which should be based on; therefore if all parties interpret it in the same context as their opponents argue, it would be hard for those who are unsatisfied with the ruling of the first instance courts to lodge their appeal to the Supreme Court. [8] They state in addition that it is clear that the ground based on by the first courts are not similar, because the Intermediate Court analysed only one legal issue relating to know whether ECOTIBAT should be ordered to pay compensation to Nyirandikubwimana for her plot of land it ruined, while the High Court analysed several legal issues before taking its decision. OPINION OF THE COURT [9] Article 28, 5º of the Organic Law N° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, states that: “...however, a case lost by a party to proceedings in the first and second instances basing on similar grounds shall not be appealed for to the Supreme Court”. [10] The issue concerning whether the grounds for the loss of the case by ECOTIBAT at first instance court are the same as for the loss at appeal level as provided for by article 28,5º mentioned above, should be analysed by examining the documents of decisions of both courts, motivation of each court. This method was the same with the one decided in the case laws RADA A 0012/12/CS, Gatsibo district vs. 14 People, rendered by this court on 14 June 2013, and in RCOM AA 0002/14/CS, Government of Libya vs. Registrar General of RDB and SOPROTEL, rendered on 29 April 2014. [11] Referring to the minute of the judgment of the Intermediate Court of Nyarugenge, before deliberation, this court examined a single legal issue regarding knowing whether ECOTIBAT should be ordered to pay compensation for Nyirandikubwimana’s plot of land it ruined and for the determination of those damages, based on the evaluation report made by Sebakwiye Theophile which was debated on since the counsels for ECOTIBAT were arguing that Nyirandikubwimana had submitted a forged report pretending to have been made by Nusu Justin who never did it. [12] The minutes of the judgment rendered by the High Court indicates that this court examined several issues including those that have not been examined by the Intermediate Court for its decision, such as the forced intervention of Kicukiro district because ECOTIBAT stated that it excavated the soil because Nyirandikubwimana had abandoned the plot of land she was given, and the issue regarding the default to visit the site by the Intermediate Court as it was prayed for by the counsel for ECOTIBAT [13] Though ECOTIBAT lost the case in both courts, the grounds and motivations on which they based on their decisions are not similar. [14] Based on the aforementioned motivations and pursuant to the provisions of article 28, 5º of Organic Law n° 03/2012/OL of 13/06/2012 mentioned above, the Court finds that the appeal lodged by ECOTIBAT which lost the case in the two previous courts for different grounds, falls into the jurisdiction of this court. Therefore the objection on lack of jurisdiction raised by Nyirandikubwimana lacks merit.

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III. THE DECISION OF THE COURT. [15] Court decides that the objection on lack of jurisdiction raised by Nyirandikubwimana Espérance has no basis. [16] Court Orders the re-opening of the hearing of the case in merit to be on the date that will be notified to the parties by the court registry.