GASHONGORE v. EWASA

# GASHONGORE v. EWASA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-05-16 - Case/document no.: RCOMA 0205/14/HCC - Collection: Commercial High Court

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GASHONGORE v. EWASA [Rwanda SUPREME COURT – RCOMA 0205/14/HCC (Niwemugeni, P.J., ) May 16, 2014] Contracts or obligations law – The right of taking photos of the children – Not disclosing the reality on the events is considered as a fraudulent act – The bidder had no right of taking the photos of the children in his act intending to commerce of advertising the distribution of electricity in the countryside, by draping their photos all over the country while he had not tell the truth to those children’s parents, calling himself what he is not, he added making the mother of the children whose photos were taken sign, who does not know reading nor writing instead making the father of the children sign who is the head of the family – Law of 30/07/1888 relating to contracts or obligations, article 50 paragraph 4 . Contracts or obligations law – The validity of the writing considered as the contract – The writing considered as the contract between both parties is nullified when it has the defect basing on its nature, the way it is made and its content, Law of 30/07/1888 relating to contracts or obligations, article 10. Evidence law – The relevance of the testimony – The testimony cannot be taken as relevant in case it is discovered that he does not tell the truth or he has a close relationship with whom he testifies for, Law nº 15/2004 of 12/06/2004 relating to evidence and its production, article 65. Law relating to the civil procedure – The capacity of claiming the moral damages – It does not mean that the moral damages claim can’t be admitted due to the fact that those who requested it have no capacity of suing in case it is sufficiently linked to the original claims of parties and on the subject matter, Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 4 paragraph 4. Law on the protecting the child – The rights of the child – The contract made between two parties has not to cause prejudice to the third party. The fact that it was revealed that there have been the photos of the children which were draped in different areas in commercial advertising transactions in case the one who did it was not authorized to, it is the violation of the person’s private life while it in violation of the law – Law N°54/2011 of 14/12/2011 relating to the rights and the protection of the child, the Constitution of the Republic of Rwanda of 04/06/2003, article 22. Fact: Gashongore Jean Damascene filed the claim before the Commercial Court of Nyarugenge against EWSA requesting that it gives to him diverses damages due to the fact that it used his two children’s photos named Uwantege Anita and Mudaheranwa Olivier, and draped them on the billboard all over the country in its commercial transactions advertising the distributions of the electricity, and it was not authorized to use them. The court decided that the children of Gashongore Jean Damascene and Mukabugingo Immaculée, whose photos were taken by the bidder representing Image Media while their parents have not authorized it; and it decided that the claim for compensations inadmissible, and that EWSA had not to give damages to Gashongore Jean Damascene who represented his children, and that the claim for damages requested by Gashongore and his wife. It instead decided that Gashongore has to pay to EWSA the advocate fees and for procedural fees expenses equal to 300,000 rwf. Gashongore him too appealed to the Commercial High Court saying that the Commercial Court of Nyarugenge

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partially decided the case on Image Media’s side that he authorized Image Media to use his children’s photos draping them on the billboards all over the country while it was not true, and that the court’s decision on the inadmissibility of the claim requesting the moral damages was illegally taken. With regard to the ground that the court decided that Gashongore Jean Damascene has given rights to Image Media to use his children’s photos where it draped them on the billboards while it is not true, Gashongore says that he couldn’t make an agreement with the person he doesn’t know since they did not meet, that he did not tell him the truth that he is the bidder, but he opted to sign with his wife the writing bearing the defect. Image Media requested the court not considering Gashongore’s ground for appeal because he is saying that there has been no contract between them, it does not remove the consent given. With regard to the consent, Image Media says that Gashongore authorized EWSA to take photos of his children to show that EWSA has distributed the electricity in the countryside, that the children study under the light of electricity. With regard to the contract, Image Media approved that it was not Gashongore’s rather of his wife. With regard to knowing whether the Court partially decided the case to the side of Image Media, Gashongore says that the court was partial to the side of Image Media basing on the testimony and writing of the witness, that the court considered as the contact while they could have suspected and nullified. With regard to the fact that the court refused to consider what have been said by the one representing Image Media who said that he committed fraud, in appeal Gashongore said that Image Media admitted that he committed the faults of not telling him the truth before putting his children’s photos on the billboards. Image Media said that this ground for appeal has no merit since it did not admit that it made fraud against Gashongore. With regard to the decision taken by the court of not admitting the claim submitted by Gashongore for the claim of moral damages, Gashongore says that he submitted the claim for the damages in the names of his children requesting the damages for them, but in the court submission he revealed that he claimed also the damages for the children’s parents. Image Media on its side says that this ground has no merit because he sued in the name of his children. On the ground that the court decided that EWSA has to be sued for nothing, Gashongore says that he meet Image Media nowhere, that whom the talk to is Alphonse who came calling himself the employee of EWSA, that that contract should have been nullified because he concealed the truth. Image Media says that this ground raised by Gashongore has no merit since he made the contract with EWSA, and that contract has been executed. Held: 1. It is not evident that Gashongore authorized Image Media to use his children’s photos draping them on the billboards all over the country, and nowhere Image Media proves that Gashongore sent her wife to represent him in that activity, thus this ground for Gashongore’s appeal has merit. 2. The fact that there are the defects on the writing, it can’t be considered as the contact made between both two parties, moreover that it is known that the contract is made by more than one person, it is not understandable how the writing signed by one person who does not know reading nor writing, in case the one who made it was present, and did not sign, or at least requested the one it was written for to read it for her so that she agrees with it or reject it.

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3. Testimony of the witness cannot be taken as sufficient truth in case she appears as the mandatory rather than being the witness who can tell the sufficient without partiality. 4. The fact that the parent has submitted the claim in the name of his children requesting the moral damages for them for their photos having been draped on the billboards to use them in commerce without those who draped them having authorized to, it cannot remove that the parents of those children be given the moral damages when they have requested them. It cannot be considered as if they change the claim. 5. Depending on his age and level of understanding, any arbitrary interference in the child privacy in order to attack his honor and dignity is prohibited. The fact that EWSA and Image Media have trespassed and illegally used the photos of Gashongore’s children, it is to violate the person’s private life, thus they have to pay damages for it. The appeal has merit; Gashongore wins, EWSA and Image Media lose; The court fees to the defendant; The judgment RCOM 1130/13/TC/NYGE changes in all its content. Statutes and statutory instruments referred to: Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 4 paragraph 4, Law n°54/2011 of 14/12/2011 relating to the rights and the protection of the child, Law nº15/2004 of 12/06/2004 relating to the evidence and its production, The Constitution of the Republic of Rwanda of 04/06/2003, article 22, Law of 30/07/1888 relating to contracts or obligations, article 50 paragraph 4, and article 10. No Case referred to. Judgment I. BRIEF BACKROUND OF THE CASE [1] GASHONGORE Jean Damascene explains that a person named Alfonse MUDASIGWA, professional businessman the owner of the company called Image Media, has won the market whose value is around three hundred millions ( 300.000.000 rwf) in EWSA for advertising its activities, he says that he knew it in the course of the trial of this case at first instance. He says that Alfonse MUDASIGWA together with UWIZEYIMANA Odette, the neighbour to his home, and other people whose names were not revealed, came at GASHONGORE’s home around 8:00 p.m., calling themselves the agents of EWSA, they wanted, in the way of showing that EWSA has distributed the electricity to the population, that he allowed them to take photos of the children studying under the electricity light at night. [2] He explains that as a person participating in State’s activities and he is the health counsellor in mutual health insurance of where he lives and even he has been among the persons of integrity in Gacaca courts, he did not hesitate on that since he found it harmless as it was accordingly with the development he always supports. Alfonse MUDASIGWA who called himself the employee of EWSA, who did not reveal to GASHONGORE that he was a businessman, immediately

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bought one battle of beer for him and the soda for both his wife and his children and there was as if there was a harmonious party valuable at 5,000 rwf, and told them that he was thankful to GASHONGORE for him to respect the plan of the state. GASHONGORE said that he and his family got surprised of being called by the people who knew him telling him that the photos of his children were draped in all parts of the country on the billboards of EWSA advertising the distribution of the electricity. [3] He continues saying that it was in that process of advertising the commercial activities of EWSA, it used his two children’s photos namely UWANTEGE Anita and MUDAHERANWA Olivier, and put them on diverse billboards in the whole country without the authorisation. He says that on 21st January 2013 he wrote to EWSA requesting that his children’s photos shouldn’t go on being used in commercial transactions of EWSA, it didn’t remove them until the claim was filed to the court; the children’s photos were still draped in the whole country while EWSA was not authorized for that. GASHONGORE says that the image of a person is his private property, and that EWSA has violated his private life, it caused him serious damages and humiliation. [4] Gashongore filed the claim before the Commercial Court of NYARUGENGE against EWSA requesting that it gives to him diverses damages due to the fact that it used his children’s photos in its commercial transactions. In that case, the court decided that the children of Gashongore Jean Damascene and MUKABUGINGO Immaculée, named: UWANTEGE Anita and MUDAHERANWA Olivier were taken photos by Image Media after their parents have authorized it; and it decided that EWSA had not to give damages to GASHONGORE Jean Damascene who represented his children, and that the claim for damages requested by GASHONGORE and his wife is inadmissible. And it decided that no procedural and the advocate fees to be given by EWSA to GASHONGORE Jean Damascene who represented his children, and ordered him to pay to EWSA 300,000 rwf for procedural and advocate fees. [5]GASHONGORE Jean Damascene was unsatisfied of that decision and appealed to the court, on the reason that the court decided that he authorized Image Media to use his children’s photos putting them on billboards all over the country while it is not true; that the court has partially decided the case on Image Media’s side, that the court was demonstrated that Alphonse MUDASIGWA the owner of Image Media, admitted that he made fraud to GASHONGORE Jean Damascene and the court did not consider it, and that the court’s decision of not admitting the claim for damages to be given to GASHONGORE Jean Damascene and MUKABUGINGO Immaculée was illegally taken, even the ground for the appeal of that the court decided that EWSA could not be sued basing on the fact that it had made the contract with Image Media, which also was authorized by GASHONGORE Jean Damascene to use the photos of his children in its commerce, GASHONGORE takes it to be illegal. Within this case the court is going to analyze whether the grounds for appeal have really merit and analyze the cross appeal advanced by EWSA and Image Media.

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1. The ground for appeal of that the court decided that Gashongore Jean Damascene given rights to Image Media to use his children’s photos where it draped them on the billboard while it is not true. [6] GASHONGORE Jean Damascene says that he did not meet Image Media that he knew it after filing the claim, from this reason he couldn’t make an agreement with the person he doesn’t know nor have seen. That Alfonse MUDASIGWA, the owner of Image Media, came at his home calling himself the agent of EWSA, thus he made no contract with Image Media. He went on saying that even if it is taken that Alfonse MUDASIGWA worked for EWSA, the latter didn’t tell the truth to him since he did not tell him that he was the bidder representing Image Media, the commercial company which practices the profession of advertising, and he did not tell him that what they wanted for the photos of his children was to use them to execute the bid he won for advertising the activities of EWSA of high value, valued at 300,000,000 rwf, but he opted to mislead and make his wife to sign the writings having serious defects which will be revealed. [7] With regard to this ground of appeal, EWSA says that nowhere the appellant invokes it except on the fifth ground, on which it has to explain itself only before it presents its cross appeal. [8] Image Media on its part says that the fact that GASHONGORE Jean Damascene says that he did not authorize Image Media to take the photos, it is a serious lie since the witnesses testified that the counsel of Image Media arrived at GASHONGORE’s home when he himself was present, that this was also approved by GASHONGORE’s wife when she was asked within the case. And that to say that he made no contract with Image Media does not remove the consent he gave when the owner of Image Media was at GASHONGORE’s home in the conversation room, or remove the writing that his wife MUKABUGINGO Immaculée made herself. [9] Image Media goes on saying that the fact that GASHONGORE says that the owner of Image Media came at his home calling himself the agent of EWSA, it is evident that they met while in his submissions he said that he knew him within the court. And again that to say that the fact that GASHONGORE authorized him to take photos of his children was due to the fact MUDASIGWA the owner of Image Media has demonstrated thing the way it was not, that GASHONGORE does not explain things the way they happened, his ground for appeal has not to be considered, in addition to that he said that what he called the agreement was for MUKABUGINGO Immaculée the children’s mother that they were not for GASHONGORE Damascene. [10] In the 15th paragraph of the appealed judgment MUKABUGINGO Immaculée the mother of the children whom Image Media took photos of, nothing proves that she said that Alfonse MUDASIGWA came at their home and tells them that he was the owner of Image Media. While in the 16th paragraph of that judgment, the witness UWIZEYIMANA Odette on her part says that Alfonse met her at the road where she worked telling her that they are the agents of EWSA. That is said by Image Media that the witnesses asked, approved that GASHONGORE knew that he was the owner of Image Media it is false, since none said it as Image Media wants to explain it. [11] With regard to the consent that Image Media says that GASHONGORE demonstrated when authorizing Image Media to take photos of his children, as he explains in his submissions,

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GASHONGORE did not authorize Image Media, rather he authorized EWSA to take photos of the children to demonstrate that EWSA distributed the electricity in the countryside, that the children study under the light of the electricity. What Image Media made to tell lies rather calling itself the agent of EWSA, it is provided in the article 50 in the 4th paragraph of the law governing the contract provides for that non-disclosure of a fact knowing that the disclosure would prevent the other party from making a mistake. The non-disclosure is considered as a fraudulent action. [12] And the agreement between MUKABUGINGO Immaculée and Image Media which approves that it not to be for GASHONGORE Jean Damascene, it is not understandable how Image Media hurried up to sign the contract with the woman, who does not know reading nor writing, at least has read what she signed for, than signing with the man who is the head of the family as provided for by the article 206 of the first book of the civil code which states: “the husband is the head of the family made up of him , the wife and their children”. With regard to this ground for appeal, nowhere it is demonstrated that GASHONGORE gave the right to Image Media of using his children’s photos by putting them on the billboards all over the country, and even nowhere Image Media proves that GASHONGORE has sent his wife to represent him in that activity, GASHONGORE’s ground for appeal has merit. 2. Has really the court partially decided the case to the side of Image Media? [13] GASHONGORE Jean Damascene says that the court was on the side of Image Media basing on the statement of the witness Uwizeyimana Odette which was taken as a principle while she was to be doubtful since she behaved as the one who works for Image Media, even the statement that Alfonse Mudasigwa made from Uwizeyimana Odette the court considered it as a contract while it could be nullified basing on its essence and the way it was made, even its content. A. With regard to the statement of the witness Uwizeyimana Odette. [14] Gashongore says that in deciding that he gave to Image Media the right to use his children’s photos, the court based on the statement of the witness Uwizeyimana Odette, and ignored that this is the one who directed Alfonse Mudasigwa within his home, that it is the one who lead and even took the children’s mother, whose photos were taken to where Image Media works, that Mudasigwa used her in making the writing that was appropriated to the children’s mother, that she was remunerated by Alfonse after making this writing. [15] He goes on saying that with regard to all these grounds the court could have paid attention on what have been said by Uwizeyimana and not take it as a principle, since her responsibility started earlier even working for Image Media, this makes Gashongore to say that he approves that her statement with regard to this matter it is Image Media which ordered her to do them, thus to take them as truth could not differ to deciding the case basing on what have been said by one party, which is partiality. [16] Gashongore says again that the other serious evidence proving that the statement of the witness couldn’t be considered is that within the judgment appealed against, Uwizeyimana proved that Alfonse told her that he was the agent of EWSA, and admitted that she was the one who drafted the writing on which the court based deciding that there has been the contract between Gashongore and Image Media, but Uwizeyimana who wrote it told the court that she did

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not remember its content. That she got the writing to be fraudulent and flew it, that he couldn’t remember what has been said by Alfonse when she lead him at Gashongore’s home to take photos of his children, and forget the content of the contract of the writing she herself drafted which remunerated her 40,000 rwf. B. With regard to the writing that Uwizeyimana Odette made from Alfonse Mudasigwa. [17] Gashongore says that the court used that writing as the contract, while it could be nullified basing on: 1. Its essence and the way it was drafted. [18] He said that before the court, there appeared two writings, one signed, and another signed as p.o. he says that he wonders which one in both the two, the one the court considered as the contract, or that Mukabugingo is the one who signed and put on the p.o, and wonders why the one who wrote it was not the one who signed it. [19] He says again that UWIZEYIMANA Odette admits that she is the one who drafted that writing mentioned above under Alfonse Mudasigwa’s order. That within her statement nowhere she said that the mother of the children, whose photos were taken, gave to her the power of attorney to draft that writing in her place. Gashongore said again that Uwizeyimana Odette herself said that Mukabugingo does not know reading nor writing, but anywhere within her statements she demonstrated that before making her append her signature, they read for her its content and responded that she agreed with it. [20] Gashongore goes on saying that the judge based on the article 352 CCI which provides for:“the father of the child is the one who represent him in the transactions with other people” he ignored it and consider what he named the contract holding the signature of the mother of the children only, he did not consider about knowing whether the children’s father disappeared so that those obligations to be fulfilled by the mother, no evidence he was provided with proving that the children’s father has really disappeared, and immediately the judge decided that he disappeared. [21] Gashongore Jean Damascene says again that the above mentioned writing could be nullified basing on: 2. The content [22] Gashongore said that what is important within that writing is that the children’s mother has sold the photos she gave to Image Media. Nothing else that writing states about giving that right, such as the billboards on which those photos would be draped and where they would be put and even the duration of that contract. [23] He said that Image Media as a big company which has won the bid of 300,000,000 rwf had to explain to Mukabugingo it called to make a contract with; it had to put all the above said into writing it invited her to sign. The fact that Media and Uwizeyimana did not do it; it would have influenced the court to nullify that contract.

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[24] He goes on saying that the court decided the case carelessly; this is due to the fact that Image Media did prove nowhere the rights it claims to have been given of putting the photos on his children’s billboards, to have given its counterpart, or if it was based on one battle of beer he bought for him and the soda he bought for the children, or if that counterpart was based on 40,000 rwf he gave to Mukabugingo and Uwizeyimana to be shared. From this motive, that contract had to be nullified basing on the article 64 of the law governing the contract. [25] Image Media says that this motive is no merit since the court did not decide the case partially on the side of Image Media, rather it decided the case basing on the law and the evidences, and this is evident in the judgment from the fifth page to the tenth, paragraph 11,15, 16, 19 and 20, 21, 26-28,32 and 33. A. With regard to the statement of the witnesses Uwizeyimana Odette. [26] The court realizes that the witness Odette Uwizeyimana has appeared within this case as if she had close collaborations with Image Media, since Mudasigwa Alfonse addressed to her so that she search for him the children to take photos and she took him to Gashongore. This didn’t end by there since after taking their photos, Image Media has then called Uwizeyimana requesting her to bring the children’s mother to Kigali, and it is not understandable how Alfonse Mudasigwa did not take the phone number of the children’s parents he has took photos, if he planned to call them again to converse other things related to those photos; and he rather opted to take Uwizeyimana’s phone number. Image Media again served of Uwizeyimana to take Mukabugingo to Kigali at its office and drafting the writing on which Mukabugingo, Gashongore’s wife who doesn’t know writing nor reading, has been made to sign while Image Media should have typed it with the machine or by the handwriting of the employee who works for it instead of being written by Uwizeyimana who came with Mukabugingo. Basing on the article 65 of the law relating to evidences and its production provides for: “Only the court can assesses the relevance, pertinence and admissibility or rejection of testimonial evidence…” the court realizes that the testimony of Uwizeyimana cannot as reliable truth in case it is evident that Image Media used her in different activities of getting the photos of Gashongore’s children in the above mentioned manner and it has furthermore rewarded her for it with 40,000 rwf that she shared with Mukabugingo, since she is as Image Media’s mandatory more than being impartial witness to the side of Image Media. B. 1. With regard to the essence of writing that Alfonse Mudasigwa has made Uwizeyimana Odette to draft and the way it was made. [27] Within this file there has appeared two writing drafted by Uwizeyimana, for Mukabugingo as right she gave to Image Media to use her children’s photos. The original one was submitted within the letter holding p.o. while the copy which is in the file holds Mukabugingo’s signature only. Nowhere does Uwizeyimana prove that Mukabugingo requested her to draft that writing for her, even nowhere she proves that she read it for her so that she confirms its content before she signs it, more likely she says that Mukabugingo does not know reading nor writing. These defects which appears within this writing, the court realizes that nowhere it can base by considering this writing as the contract to which both parties have made, as it is usually known that the contact is made between more than one person, and it is not reasonable how this writing has been signed by only one person who does not know reading nor writing, in case the owner of

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Image Media was himself present and didn’t sign on it, or requested the one who drafted it to read it for whom it was written for her to confirm or deny it. [28] The fact that that writing called the contract within the case appealed against has been made to be signed by the children’s mother who does not know reading nor writing instead of making the children’s father sign it as provided for by the article 352 of the first book of the civil code which states: “in case the marriage is still valid, the father of the child represents him in the activities which involves him with other people and it is the one who manages his private property, when it’s impossible it is done by his mother”. The court didn’t reveal what prevented Gashongore to sign for his children’s photos as provided for by this article, instead of making the children’s mother sign for them as if the her husband was not present. It didn’t also disclose the urgency which was in making the children’s mother to sign instead of waiting for the father, even it didn’t disclose that Gashongore sent his wife to sign for him on that contract. B.2. With regard to the content of the writing that Alfonse Mudasigwa made Uwizeyimana to draft. [29] Gashongore says that writing that the court considered as the contract has the defect considering its content, since except stating that Mukabugingo gave the right of draping her children’s photos on the billboard, nothing else is within that contract. Here the court realizes that Image Media had to give the explanations relating to that contract they made, it duration even where those photos would be draped , how much they has to be and even its counterpart for having been authorized to use the photos of those children since it not understandable how Image Media has won the bid of 300,000,000 rwf on draping the photos on the billboards, and the corresponding counterpart to Gashongore’s family be 20,000 rwf which has been to Mukabugingo and 5,000 rwf he bought the drinks for them. Basing on the article 10 of the Organic Law governing the contract provides for: “an offer to the contract must be communicated to the offeree, must manifest the intent to contract, and sufficiently define the terms of the contract”. The court realises that it cannot consider the writing that has been taken as the contact between both parties to the appealed judgment, and it has to be nullified basing to the explanations mentioned above. 3. With regard to the ground for the appeal that the court didn’t consider what was revealed to it that Mudasigwa owner of Image Media admitted that he made fraud to Gashongore Jean Damascene. [30] Gashongore says that after that EWSA forced Image Media to intervene within this case, Mudasigwa approached Gashongore’s family and his advocate and admitted that he committed the faults of not telling the truth to Gashongore before draping those photos in the whole country, and that no corresponding counterpart he gave to him, except buying for him the battle of beer and soda he bought to his children and wife equal to 5,000 rwf and 20,000 rwf he gave to Mukabugingo when he called her to come to Kigali. He says that after admitting those faults, he promised 2,000,000 rwf to Gashongore, when he got that that money that couldn’t even pay the advocate who pleads for him; he opted to go on in the court procedures. [31] Image Media says that this ground for the appeal has no merit since Alfonse Mudasigwa didn’t admit that he made fraud to Gashongore, and it does not understand his basis to say it. The

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fact that he agreed 1,000,000 rwf does not mean to admit the fault as it has been explained within his letter and analyzed by the first judge. The fact that the agreement between Image Media and Mukabugingo on the use of the photos is enough, that money has no be doubted. [32] As it is disclosed within the letter that Mudasigwa Alfonse has written to the counsel Anita who represented Gashongore, admitting to give 1,000,000 rwf to prevent to involve his client EWSA in the procedural fees and protect Image Media’s image. This is admitted by both parties which agree that Image Media did want to give 1,000,000 rwf to Gashongore which became impossible. Saying that it does not mean that it admitted the faults, the court realises that it cannot consider it since it has been disclosed above that he went to Gashongore naming himself the agent of EWSA while he was not, and didn’t truly reveal how those photos would be used and the time it would take, and there was no counterpart agreed up by Gashongore with regard to the use of his children’s photos, the court realises that this ground for appeal has to be considered. 4. Was the decision of the court on the inadmissibility of the claim for the moral damages to be given to Gashongore and Mukabugingo Immaculée decided illegally? [33] Gashongore says that the decision of the judgment RCOM 1130/13/TC/NYGE, the judge decided that the claim for the moral damages has not to be admitted since Gashongore Jean Damascene who filed the claim has requested them. He says that he really filed the claim in the name of his children for whom he requests the damages, but in his submissions he disclosed that he requests the damages for both the parents and their children. He explains that what is sad and not understandable is that the judge who really knew that the article 4 paragraph 4 of the law n o 21/2012 relating to the civil, commercial, labour and administrative procedure provides for: “the subject matter of the suit can be changed by additional claims if they are sufficiently linked to the original claims of parties”. That he ignored it, and promptly not to admit that claim which was submitted within the submission even though it was not revealed in the document filing the claim. [34] Gashongore goes on saying that even if he could be taken as if he changed the claim in the course of trial, he wonders why the judge has promptly decided that claim inadmissible without asking the parties when they are the only ones who have right deny the change of the claim in the course of trial, as it is provided for by the article 4 in its paragraph 2 of the above mentioned law. And he said that in deciding the claim for damages inadmissible, he only based on the fact that the children’s parents claimed them for themselves, the judge did not explain at least that they had no interest no capacity, then he wonders why the judge did not reveal other person who got injured for seeing the photos of very young children draped in the all over the country without authorization no counterpart except their parents. Gashongore says that he wonders why the judge did not reverse that those parents have no capacity of filing the claim in the name of their children without trying to explain the reason why they have no capacity to file the claim for damages they suffered if it is that which made him to deny admitting their claim. [35] Image Media itself says that this ground has no basis besides that Gashongore Jean Damascene who sued it, has filed the claim in the name of his children, that the claim wouldn’t be admitted and analyzed as the judge has explained it on the ninth page, paragraph 27 of the appealed judgment.

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[36] As disclosed by Gashongore, the article 4 paragraph 4 of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure provides for: “the subject matter of the suit can be changed by additional claims if they are sufficiently linked to the original claims of parties”. The fact that Gashongore Jean Damascene and his wife Mukabugingo Immaculée have requested that they may be provided with the damages for their children’s photos which were draped all over the country without the one who did it being authorized for it, the court realizes that it a close relationship with the filed claim and with the subject matter, both the parents and the children have requested the damages of 10, 000,000 rwf. There was no ground to base on the article 4 second 2 of the above mentioned law which provides: “In the course of trial, no party shall be allowed to change the subject matter of the claim, without agreement of all the parties to the case”. Gashongore did not change the claim instead; he requested what he has disclosed within the claim requesting them for the parents of the children whose photos were draped on the billboards, who are him and his wife. And basing on the article 2 of the above mentioned law which provides: “a claim cannot be accepted in court unless the plaintiff has the status, interest and capacity to bring the suit”, this court realizes that both Gashongore and his wife Mukabugingo had the capacity and interest to bring the suit for the damages, since their young children’s photos were draped on the advertising billboards of EWSA without Image Media, which did it, being authorized for it. 5. The fact the court has decided that EWSA has not to be sued, basing on the fact that it had the contract with Image Media, and this one has been given the right by Gashongore Jean Damascène of using his children’s photos in its commerce is illegal. [37] Gashongore says that he has sufficiently proven that he met nowhere with Image Media, instead he conversed with Alfonse who came calling himself the employee of EWSA, and that he disclosed that even though it is taken as if there has been the contract authorizing EWSA or Image Media to use his children’s photo, that contact had to be nullified since Alfonse Mudasigwa owner of Image Media has concealed the truth to the parents of the children and sold their photos. That basing on all these explanations, the court which decided this case on the first instance had to appreciate that there has been the violation of private life of both their children and his family made basing on the contract relationship between EWSA and Image Media. He goes on saying that the judge would have considered that the article 113 of the law no 45/2011 governing the contracts which provides for contracts shall have effect only on contracting parties. They shall not cause any prejudice to a third party and shall only benefit to him in case of provisions in favour of a third party; that he had to decide that EWSA and Image Media together had to give to Gashongore the damages he claimed for his children, and for him and his wife for the injury they suffered. [38] Image Media says that this ground has no merit in addition to that the court has correctly explained on the ninth page paragraph 26 of the appealed judgment, that nothing he can criticize to this decision since he made the contract with EWSA and that contract has been executed since that project of EWSA intended to the distribution of the electricity in the countryside of the country in the state’s plan that each home in Rwanda must have electricity. That if Gashongore says that the contract had to be nullified it is because he also agrees with it but he does not legally proving its defect, and indeed its one who signed it approved it before the court.

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[39] EWSA says that if the ground for the appeal is analyzed, it’s realized that the appellant does not disclose which laws that the court ignored. [40] As it is disclosed by the explanations given by Gashongore on this ground of appeal, he advanced the article 113 of the law no 45/2011 governing the contract. The first paragraph of this article provides for: “contracts shall have effect only on contracting parties. They shall not cause any prejudice to a third party and shall only benefit to him in case of provisions in favour of a third party”. The fact that EWSA argues that Gashongore does not disclose the laws that the court ignored, this court realizes that it has no truth since this article has been advanced by Gashongore on this ground for appeal. [41] With regard to what is said by Image Media that it has no criticism against the decision of the judge, this court realises that Image Media ignores that the contract it made with EWSA must not cause prejudice to any one, this means that it must not cause prejudice to Gashongore and his family in case they have not agreed up on the use of these photos as proven above. [42] Basing on the article 22 of the Constitution of the Republic of Rwanda of 04/06/2003 as amended up to date provides for: “The private life of a person shall not be subjected to arbitrary interference; his or her honor and good reputation shall be respected”; basing also on the Law N°54/2011 of 14/12/2011 relating to the rights and the protection of the child provides for: “the private life of the child is protected by the law. Child privacy is protected by the law. Depending on his age and level of understanding, any arbitrary interference in the child privacy in order to attack his honor and dignity is prohibited”. This court realizes that EWSA and Image Media have trespassed and illegally used the photos of Gashongore’s children thus they have to pay damages for it. 6. May the cross appeal advanced by Image Media be considered? [43] Image Media says that it filed the cross appeal due to the fact that it is involved in the procedural fees for no ground, and requests the damages for the humiliation equal to 2,000,000 rwf, and the damages for the procedural fees and the advocate fees equal to 1,000,000 rwf which makes in total 3,000,000 rwf. This court realises that Image Media must not be given these damages since it is evident that it used the photos of Gashongore’s children by illegally draping them on the billboards all over the country. 7. May the cross appeal filed by EWSA be considered? [44] EWSA says that it files the cross appeal requesting the court to provide with it the damages of 2,000,000 rwf for having been involved in the procedural fees and 1,000,000 rwf for expenses for the procedural and the advocate fees which in total makes 3,000,000 rwf. This court realises that EWSA has not to be provided with these damages since it has put the photos of Gashongore’s children on its billboard, without considering whether it violates their rights. 8. With regard to the damages requested by Gashongore. [45] Gashongore requests both EWSA and Image Media to pay the damages equal to 20, 0000,000 rwf for each child, and the moral damages for the children’s father and mother equal to 10,000,000 rwf for the humiliation they caused to them and the damages for the procedural and

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the advocate fees equal to 5,000,000 rwf. This court realises that Gashongore Jean Damascene does not undoubtedly prove that he deserves them, he will be provided with them in the discretion of the court. II. THE DECISION OF THE COURT [46] The Commercial High Court: [47] Decides to receive the appeal filed by Gashongore Jean Damascene. [48] It decides that it has merit. [49] It decides that Gashongore Jean Damascene wins the case, and that both EWSA and Image Media lose the case. [50] It orders EWSA and Image to pay to Gashongore 4,000,000 rwf for each child draped on the billboards, and have to pay them within 15 days after this decision becomes final, in case they fail to pay them it will be taken from their property through the state’s power. [51] It orders EWSA and Image Media to pay to Gashongore Jean Damascene and his wife Mukabugingo Immaculée the damages equal to 1,000,000 rwf for each one, and pay them within 15 days after this judgment becomes final, and if they fail to pay it will be taken from their property through the state’s power. [52] It orders EWSA and Image Media to pay to Gashongore Jean Damascene 1,000,000 rwf for the court proceeding expenses and the lawyer’s fee, and pay them within 15 days after this judgment becomes final, if they fail to pay it will be taken from their property through the state’s power. [53] It orders EWSA and Image Media to pay to Gashongore Jean Damascene 79,000 rwf he has paid for the court fees and pay them within 15 days after this judgment becomes final, if they fail to pay it will be taken from their property through the state’s power. [54] It orders EWSA and Image Media to pay to Gashongore Jean Damascene in total 11,079,000 rwf, and pay them within 15 days after this judgment becomes final, if they fail to pay it will be taken from their property through the state’s power. [55] It orders that the judgment RCOM 1130/13/TC/NYGE changes in all its content.