EQUITY BANK RWANDA Ltd v. RUTAYISIRE

EQUITY BANK RWANDA Ltd v. RUTAYISIRE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-04-08 - Case/document no.: RCOMA 0133/15/HCC - Collection: Commercial High Court

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EQUITY BANK RWANDA Ltd v. RUTAYISIRE [Rwanda URUKIKO RUKURU RW’UBUCURUZI – RCOMA 0133/15/HCC (Nsengiyunva, P.J., ) April 08, 2015] Law regulating commercial procedure – The summary procedure claim – Examining the objection – The summary procedure judge shall decide by way of orders, but without prejudicing the merits of the principal suit, that the summary procedure judge shall first examine, before deciding the possible exceptions that may arise from that case –The party may not say that the summary procedure claim may not be admitted in case what is to be examined within that claim may not prejudice the case in merits –The objection for the lack of the quality to claim may not be examined for the summary procedure claim since the judge for the for the merits of the case is allowed to examine the summary procedure claims which may arise within the principal case he/she tries, Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure article 316 and 320. The law regulating the summary procedure – The validity of the decision for guaranty – Provisionally suspending the decision for the guaranty – Granting to the bank the guaranty of the house before the hearing of the case in merits which is illegal – The execution of the decision of granting to the bank the guaranty of a house has to be provisionally suspended until the case in merits

is finally decided, the Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure article 316 and 320. The law regulating the commercial procedure – The court fees within the summary procedure claim – Within the summary procedure claim no damages regarding to the expenses may be provided – The fact that the court fees are claimed only in the principal case, those who were condemned to pay them may not pay them in case the decision taken is dismissed, the Law N° 21/2012 of 14/06/2012, Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure article 316 and 320. article 320. Facts: Rutayisire Deo lodged a summary procedure claim before Nyarugenge Commercial Court requesting for the suspension of the execution of the decision of granting to EQUITY BANK RWANDA Ltd the guaranty of his house. The court has granted him with it, and condemned EQUITY BANK RWANDA Ltd, RDB and Kayonga Louise the Registrar General of RDB to restitute to Rutayisire the money he has paid in lodging the claim. EQUITY BANK RWANDA Ltd appealed arguing that Rutayisire Deo had no quality, the interests and the capacity for lodging the claim since this guaranty results from the contract which was made between EQUITY BANK RWANDA Ltd and the company Difference Cosmetique. EQUITY BANK RWANDA Ltd goes on saying that granting it with

the house may be suspended until the principal case which opposes it with the company la Difference Cosmetique is finally decided since the fact that RDB has granted the house before the case in merits is finally decided is a fault. Rutayisire for him, he claims that he had the quality, interests and the capacity to lodge a claim since what is urgent is to suspend the taking into possession of his house. RDB also says that Rutayisire’s claim may not be admitted since he has sued it instead of suing the Registrar General who has taken the decision of granting EQUITY BANK RWANDA Ltd with

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Rutayisire’s house. Kayonga Louise says that she could not personally be sued because she has decided as the Registrar General. Rutayisire on his own says that RDB may be sued since the Registrar General is its employee, Kayonga Louise her be sued personally since she has no immunity of not being sued. RDB went on saying that no urgency is in the case since the Land Centre has already restricted the transfer of Rutayisire Déo’s property until the cases are decided. Rutayisire on her own says that the decision of Land Centre is an administrative which does not have the value as the decision of the court. The Registrar General of RDB on her own says that says that her with her co-defendants were condemned to pay the court fees while within the summary procedure claim no damages and related expenses incurred may be provided. Rutayisire says that the court fees would be charged since they differs from the damages and related expenses incurred in the case. Held: 1.The fact that the summary procedure claim has been admitted, that’s to mean that the one who lodged it has the quality, interests and capacity to lodge a claim. Within this summary procedure case it may not examine whether RDB or Kanyonga Louise could not be sued since if it decides that they could not be sued it may prejudice the hearing of the principal case in case it may have already decided that they have not to be sued and while the judge for the principal case also may examine whether they could not be sued, he/she may examine nothing.

2. The fact that the decision of granting the bank with the guaranty of the house which has been illegally taken may be nullified. That decision has to be provisionally suspended until the principal case is finally decided since in case the bank takes it into possession while and it Rutayisire Déo wins that case in which he claims to be nullified, the house may have already taken pot of him.

3. EQUITY BANK RWANDA Ltd, RDB and Kanyonga Louise may not be condemned to restitute to Rutayisire Déo 50,000 Frw for the court fees he has deposited while lodging the claim since it is prohibited that they are claimed within the summary procedure claim instead they are claimed within the principal claim, thus that decision has to be dismissed. Appeal has been admitted and it has basis on some grounds. The execution of granting the bank with the guaranty is provisionally suspended. Court fees deposit which could be restituted is dismissed. . Statutes and statutory instruments referred to: Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure article 316 and 320. No Cases referred to:

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Judgment I.BRIEF BACKGROUND OF THE CASE [1] EQUITY BANK RWANDA Ltd appeal against the judgment of the summary procedure claim R.Com 0235/15/TC/Nyge which was rendered by Nyarugenge Commercial Court in which it was sued by Rutayisire Déo requesting to suspend the execution of the decision which granted the guaranty on the house to it which is located in the plot n° 1247 Intambwe Village, Kimihurura Cell, Kimihurura Sector, Gasabo District, Kigali City, until the judgment R.Com 0212/15/TC/Nyge is finally decided, the court granted it to him, and condemned EQUITY BANK RWANDA Ltd, RDB and Kanyonga Louise to pay back to him 50,000 Frw he has deposited in filing the claim. The public hearing of the case was held on 01/04/2015 EQUITY BANK RWANDA Ltd was represented by Me Karemera Frank, Rutayisire Déo was represented by Zitoni Pierre Claver, RDB was represented by Me Sangano Yves, Kanyonga Louise was represented by Ingabire Joselyne. Karemera Frank says that says that EQUITY BANK RWANDA Ltd has appealed since the court has decided that Rutayisire Déo has the capacity, the interests and the quality of filing the claim for suspending the execution of decision which granted the guaranty on the house to it which is located in the plot n° 1247 Intambwe Village, Kimihurura Cell, and this grant of the guaranty results from the contract which was made between EQUITY BANK RWANDA Ltd and the

company La Différence Cosmétique in which he is not member, at least the claim may be lodged by the company La Différence Cosmétique which made contract. Me Karemera Frank says that EQUITY BANK RWANDA Ltd appealed because the court ruled that granting the house to it which is located in the plot n° 1247 be suspended until the judgment R.Com 0212/15/TC/Nyge opposing it with the company La Différence Cosmétique is finally decided the fact that RDB has granted to it that house before deciding it is a fault, it hinders the decision of the principal suit since the subject matter of the case is to nullify the grant of the house to EQUITY BANK RWANDA Ltd, and it may be the basis to nullify it, the court could have based on the urgency which has not been raised. Zitoni Pierre Claver says that Rutayisire Déo has the quality, the interests and the capacity of lodging the claim for the suspension of the decision of granting the house on which he has given for guaranty to EQUITY BANK RWANDA Ltd since to give does not deprive him from the right of being his property and the company La Différence Cosmétique which did not pay it returns to him. Zitoni Pierre Claver says that the court did not hear the principle claim in merits since what it did it is suspending granting the house. Zitoni Pierre Claver says that what is urgency was that granting Rutayisire Déo’s house to it be suspended until the grounds which make the house to be granted are still being heard in the judgment R.Com 0212/15/TC/Nyge. Me Sangano Yves says that the claim could not have been admitted since Rutayisire Déo has sued RDB while it could not be sued since whom could be sued is the Registrar General who took the decision of granting the house to EQUITY BANK

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RWANDA Ltd. Me Sangano Yves says that there was no urgency in the case since the Land Centre has already restricted the transfer of Rutayisire Déo’s property until the cases are decided. Ingabire Joselyne says that Kanyonga Louise could not personally be sued since she has no relationship with the case since she took the decision as the Registrar General. Me Ingabire Joselyne says that Kanyonga Louise and her co-defendants were condemned to pay the court fees while within the summary procedure claim no damages for the expenses have to be provided. Me Zitoni Pierre Claver says that RDB could be sued since the Registrar General is its employee and she is not independent, and that Kanyonga Louise could be sued since she has taken the decision of granting Rutayisire Déo’s house to EQUITY BANK RWANDA Ltd since she does not have the immunity of being sued. Me Zitoni Pierre Claver says that the court fees could be condemned since they differ from the damages since they are related to what has been performed in the case. [2] The issues that the court has to analyse in this case: - Whether Rutayisire Déo has no quality, interests and capacity of filing a summary procedure claim; - Whether RDB could not be sued within the summary procedure claim; - Whether Kanyonga Louise could not be sued within the summary procedure claim; - Whether the court which decided the case of the summary

procedure claim has prejudiced the decision of the principal suit; - Whether there was an urgency in the case, granting the house has to get suspended; - Whether the defendants could not be condemned to pay the court fees for the summary procedure claim. II. ANALYSIS OF THE LEGAL ISSUES With regard to the lack of quality, interests and the capacity of lodging a summary procedure claim for Rutayisire Déo and RDB and KAYONGA Louise not being sued. [3] The article 316 of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure as amended and completed up to date provides for that when there is a need to have an interim ruling on a matter which requires urgent resolution, an action shall be filed in accordance with the ordinary procedure regarding principal suits, before an urgent applications judge in the jurisdiction where the urgent measure is required in accordance with ordinary summons procedure, that of 320 provides for that the summary procedure judge shall decide by way of orders, but without prejudicing the merits of the principal suit, that the summary procedure judge shall first examine, before deciding, whether he/she is competent to

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hear the summary procedure claim submitted to him/her and possible exceptions that may arise from that case. [4] Me Karemera Frank says that EQUITY BANK RWANDA Ltd has appealed because the court has decided that Rutayisire Déo has the quality, interests and the capacity of filing a claim suspending the execution of the decision of granting the guaranty which is made up of the house which is located in the plot n° 1247 Intambwe Village, Kimihurura Cell, while this grant of the guaranty results from the loan contract which was made between EQUITY BANK RWANDA Ltd and the company La Différence Cosmétique to which he is not member, and at least the claim may be lodged by the company La Différence Cosmétique which made the contract and the fact that Rutayisire Déo has given his house to the company La Différence Cosmétique to give it for guaranty he has agreed all the consequences which may affect it. [5] Me Zitoni Pierre Claver says that Rutayisire Déo has the quality, interests and the capacity of lodging the claim suspending the execution of granting the house to EQUITY BANK RWANDA Ltd it was given for guaranty since to give it does not deprive him from the right of being his property and the company La Différence Cosmétique which did not pay returns to him. [6] Me Sangano Yves says that the claim has not to be admitted since Rutayisire Déo has sued RDB while it could not be sued

instead the Registrar General who took the decision of granting the guaranty to EQUITY BANK RWANDA Ltd could be sued. [7] Me Ingabire Joselyne says that Kanyonga Louise could not personally be sued since he has took the decision as the Registrar General. [8] Zitoni Pierre Claver says that RDB could be sued since the Registrar General is its employee and she is not independent, and that Kanyonga Louise also could be sued since she has taken the decision of granting Rutayisire Déo’s house to EQUITY BANK RWANDA Ltd since she does not have the immunity of being sued. [9] The court realises within this summary procedure claim that it may not examine whether Rutayisire Déo has the quality, interests and the capacity of lodging the summary procedure claim requesting to suspend the execution of the decision for granting the guaranty to EQUITY BANK RWANDA Ltd which is made of the his house which is in the plot n° 1247 in Intambwe Village, Kimihurura Cell since it decides that if he lacks them he could not have filed the claim which may prejudice the decision of the principal case since it may already have said that he could not file the claim while the judge who examines the principal claim also may examine whether he could not file a claim, and meanwhile he may have nothing to examine. [10] The court realises within this case of the summary procedure claim it may not examine whether

RDB and Kanyonga Louise would not have been sued since in case it decides that they could not be sued, it may prejudice the merits of the principal suit since it may have already decided that they have not to be sued while the judge who examines the principal case also may examine whether they could not be sued, and meanwhile he may have nothing to examine. With regard to deciding the case of the summary procedure prejudices the merits of the principal suit and the fact that there is an urgency which makes granting the house may be suspended staying for the decision of the principal suit.

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[11] The article 316 of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure as amended and completed up to date provides for that when there is a need to have an interim ruling on a matter which requires urgent resolution, an action shall be filed in accordance with the ordinary procedure regarding principal suits, before an urgent applications judge in the jurisdiction where the urgent measure is required in accordance with ordinary summons procedure, that of 320 provides for that the summary procedure judge shall decide by way of orders, but without prejudicing the merits of the principal suit. [12] Me Karemera Frank says that EQUITY BANK RWANDA Ltd appealed because the court ruled that granting the house which is located in the plot n° 1247 be suspended until the judgment R.Com 0212/15/TC/Nyge opposing it with the company La Différence Cosmétique is finally decided, the fact that RDB has granted that house it before it gets decided, it is a fault, and that granting the guaranty to it has based on the fact that the debt was not paid, and it does not require the contractants to appear before the court, the court would base on the urgency which was not raised and deciding that RDB has illegally granted it prejudices the decision of the principal suit since the subject matter of the case is to nullify the grant of the house to

EQUITY BANK RWANDA Ltd, and it may be the basis to nullify it. [13] Me Zitoni Pierre Claver says that did not hear the merits of the principal claim since what it did, it is suspending the execution the grant of the house, that is that granting RUTAYISIRE Déo’s house be suspended in case the grounds which made the house to be granted haven’t been heard in the case R.Com 0212/15/TC/Nyge. [14] Me Sangano Yves says that RDB has revealed that no urgency is in the case since the Land Centre has already restricted the transfer of Rutayisire Déo’s property until the cases are decided. [15] Me Zitoni Pierre Claver says that the decision of Land Centre is an administrative which does not have the value as the decision of the court. [16] The court finds there is the case R.Com 1222/14/TC/Nyge in which La Différence Cosmétique Ltd sues EQUITY BANK Ltd claiming to be given the timetable of how the debt will monthly be paid and resolving the disputes on the exact amount of the debt to be paid. [17] The court realises that Nyarugenge Commercial Court has found the fact that the house which is located in the plot n° 1247 in Intambwe Village, Kimihurura Cell has been granted to EQUITY BANK Ltd while there is the case which still opposes it to the company La Différence Cosmétique Ltd on the debt to which that guaranty was given is illegal since it could be granted to it after that judgment

becomes executable, it realises therefore, the execution of that decision has to be suspended provisionally until the case R.Com 0212/15/TC/Nyge is finally decided. [18] The court realises therefore, the fact that Nyarugenge Commercial Court has realised granting the guaranty of the house to EQUITY BANK Ltd which is located in the plot n° 1247 in Intambwe Village, Kimihurura Cell is illegal and prejudices the decision of the principal suit R.Com 0212/15/TC/Nyge since Rutayisire Déo claims therein to nullify the decision of granting that guaranty to EQUITY BANK, and nothing would be decided on nullifying that decision, thus

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the fact of realizing to grant the guaranty of the house was illegally done and it has to be nullified within the summary procedure claim since they will be heard within the principal suit. [19] The court realises however the execution of granting the guaranty of the house to EQUITY BANK RWANDA Ltd which is located in the plot n° 1247 in Intambwe Village, Kimihurura Cell has to suspended provisionally until the judgment R.Com 0212/15/TC/Nyge is finally decided since in case it gets granted to it and RUTAYISIRE Déo wins that case in which he claims them to be nullified, he may have already lost that house and be registered to EQUITY BANK RWANDA Ltd and also nothing prevent it to transfer it to others’ possession. With regard to not being condemned to pay the court fees of the summary procedure claim. [20] The article 320 of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure as amended and completed up to date provides that the damages and related expenses incurred by the party during the hearing of summary procedure shall be claimed together with the principal application. [21] Me Ingabire Joselyne says that Kanyonga Louise with her co-defendants were condemned to pay the court fees while within the summary procedure claim no damages and related expenses incurred may be provided. [22] Me Zitoni Pierre Claver says that the

court fees would be charged since they differs from the damages and related expenses incurred in the case. [23] The court realises that EQUITY BANK Ltd, RDB and Kanyonga Louise would not be condemned to pay back to Rutayisire Déo 50,000 Frw for the court fees deposited when he filed the claim since it is prohibited that they are claimed in the summary procedure claim since they are claimed in the principal claim, thus this decision has to be dismissed. III. DECISION OF THE COURT [24] DECIDES to admit lodged by EQUITY BANK RWANDA Ltd and it decides that it has basis on some grounds. [25] DECIDES that within this summary procedure claim it may not examine whether Rutayisire Déo has the quality, interests and the capacity to lodge the claim. [26] DECIDES THAT within this case of the summary procedure claim it may not examine whether RDB and Kanyonga Louise could not be sued. [27] DECIDES that what Nyarugenge Commercial Court has realised that granting EQUITY BANK Ltd with the guaranty of the house which is located in the plot n° 1247 in Intambwe Village, Kimihurura Cell is illegal and prejudices the decision of the principal suit R.Com 0212/15/TC/Nyge, that they have to be nullified in the summary procedure claim since they will be heard within the principal suit R.Com 0212/15/TC/Nyge.

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[28] DECIDES that the execution of providing EQUITY BANK RWANDA Ltd with the guaranty of the house which is located in the plot n° 1247 in Intambwe Village, Kimihurura Cell has to be suspended provisionally until the judgment R.Com 0212/15/TC/Nyge is finally decided. [29] DECIDES that 50,000 Frw for the court fees which EQUITY BANK Ltd, RDB and Kanyonga Louise have been condemned to pay back to Rutayisire Déo has to be dismissed. [30] Orders that what Nyarugenge Commercial Court has realised that granting the guaranty of the house to EQUITY BANK Ltd which is located in the plot n° 1247 in Intambwe Village, Kimihurura Cell which is illegal are nullified in the summary procedure claim since they will be heard within the principal suit R.Com 0212/15/TC/Nyge. [31] Orders that that the execution of the decision of EQUITY BANK RWANDA Ltd with the guaranty of the house which is located in the plot n° 1247 in Intambwe Village, Kimihurura Cell has to be suspended provisionally until the judgment R.Com 0212/15/TC/Nyge is finally decided. [32] Orders that that 50,000 Frw for the court fees which EQUITY BANK Ltd, RDB and Kanyonga Louise have been condemned to pay back to Rutayisire Déo is dismissed. .