GASIRIKARE v. FONDS DE GARANTIE AUTOMOBILE (FGA)

# GASIRIKARE v. FONDS DE GARANTIE AUTOMOBILE (FGA)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2013-09-27 - Case/document no.: RCAA 0147/11/CS - Collection: Supreme Court

## Text

## Page 1

1 GASIRIKARE v. FONDS DE GARANTIE AUTOMOBILE (FGA) [Rwanda SUPREME COURT – RCAA 0147/11/CS (Mukanyundo, P.J., Rugabirwa and Mukandamage, J.) September 27, 2013] Civil Law – Damages resulting from a fault committed – The effects of contradictory statement of the witnesses and non production of evidences – Fail to produce the evidence of what filed for will not be paid the damages – The contradiction of witnesses make their testimonies invalid – Law of 30/07/1888 relating to the contracts or obligations, article 258 – Law n° 15/2004 of 12/06/2004 relating to the evidence and its production, article 65 – Law n° 21/2012 of 14/06/2012 Law relating to the civil, commercial, labour and administrative procedure article 9. Facts: The vehicle Minibus Toyota Hiace of the appellant had an accident he claims it was caused by unidentified vehicle of Fuso model which beamed the long lights towards the drive and he lost sight and it knocked it and it preceded. The appellant sued to the Intermediate Court of Nyarugenge requesting that it gives him damages resulting from the accident, for his vehicle was knocked by unidentified vehicle, it decided that his claim has no merit, for the testimony given in the Prosecution confirmed that there is no unidentified vehicle which caused the his vehicle the accident, no compensation the respondent gives him. He was not satisfied with the decision of the Court and he appealed to the High Court, which decided that the judgement has not changed He appealed again to the Supreme Court stating that the High Court must have relied on the testimonies which was given in the Judicial Police confirming that his vehicle was knocked by other vehicle which was not identified, and then it orders the respondent to give him compensation, instead of relying on the invalid testimonies given in the Prosecution and on the photo of the respondent which was not debated during the court proceedings, Held: The contradiction of the witness makes their testimonies invalid, because it creates doubt, thus even the statement made by Judicial Officer basing on those testimonies is also invalid, and also that the appellant does not produce an evidence which is unskeptical on the accident his vehicle had, caused by the vehicle of the Fuso model which was not identified, is a reason for him not to get compensation originating from it. The appeal is without merit; The court fees on the appellant. Statutes and statutory instruments referred to: Law of 30/07/1888 instituting civil code book III, article 258. Law n° 15/2004 of 12/06/2004 65 Law n° 21/2012 of 14/06/2012 Law relating to the civil, commercial, labour and administrative procedure article 9. No cases referred to

## Page 2

2

Judgement I. BRIEF BACKGROUND OF THE CASE [1] On 20/10/2007, at eleven p.m, a Minibus vehicle Toyota Hiace ,with number plate of RRA 631 X of Gasirikale Evariste had an accident when it had reached Shyorongi, at a place called Kanyinya, leading to Kigali City, After that Gasirikare sued the Special Guarantee Fund (SGF) in the Intermediate Court of Nyarugenge requesting for compensation resulting from that accident because his vehicle was knocked by a vehicle of Fuso model which was unidentified.. [2] That Court decided that the claim of Gasirikare is without merit for the testimonies submitted in the prosecution confirmed that there is no unidentified vehicle that caused his car the accident ,therefore SGF must not give him compensation, it ordered Gasirikare to give to it 150,000Rwf for the procedural cost and counsel fees. [3] Gisirikare appealed to the High Court at Kigali, it decided that the judgement appealed has changed only regarding the counsel fees, it ordered Gisirikare to give to SGF 300,000 Rwf for counsel fees,explaining that the photo submitted by SGF illustrates that the vehicle of Gasirikare was not knocked by another vehicle which was unidentified as the driver Biseruka Védaste who was driving at the time of accident avers. [4] Gasirikare appealed to the Supreme Court arguing that the High Court must have relied on the testimonies given in the Judicial Police confirming that his vehicle was knocked by another of Fuso model which was unidentified, and then it orders SGF to give him the compensation rather than relying on the irreverent witness from the prosecution and of the photo of SGF which was not debated upon, and for SGF claims that it cannot give him the compensation because his vehicle was not knocked by unidentified vehicle [5] The case was heard in public on 23/04/2013, Gasirikare Evariste represented by Nkeza S. Clément and Nsengiyumva Vianney, the counsels, and for SFG represented by Mutembe Protais, the counsel. On 30/07/2013, the Court proceeded with its proceedings that it can be more informed on the value of what was destroyed on that vehicle, and to be given the insurance document that vehicle had at the time it had an accident, together with the declaration of accident statement which was recorded immediately after the accident. II. THE LEGAL ISSUE IN THIS CASE AND IT’S ANALYSIS. Assessing whether the accident which destroyed the vehicle of Gasirikare was caused by unidentified vehicle. [6] The counsel for Gasirikare adduces that the High Court must have relied on the testimonies of the Judicial Police conforms in manner which is not contradictory that the accident was caused by the vehicle of Fuso model which was un identified , thus it awards to him the money for repairing his vehicle equal to 136,168,105Rwf including the money for repairing

## Page 3

3 the vehicle , for parking, the loss he incurred , moral damages, and the counsel fees, instead of relying on the photo submitted by SFG which was not debated upon at the proceedings, demonstrating that his vehicle was knocked on the right side , yet it was knocked on the left side. [7] They also state that the court must have not invalidated the above stated testimonies basing on the testimony submitted in the prosecution in 2009,for they are made up of the speech of the driver Biseruka Védaste alone who contradicted himself because he had some disagreements with Gasirikare after the accident and SGF corrupted him with 50,000Rwf as demonstrated by the cheque in the file, even it facilitated him to look for the witnesses who went to the prosecution on their own initiative to contradict the testimonies they prior gave in the Judicial Police . [8] They explain that it was the unidentified vehicle which caused the accident because it turned on long bright lights towards the driver Biseruka, which led him to lose sight; it even knocked the vehicle he was driving after it proceeded. Regarding that accident are illustrated by the drawing made by the competent Judicial Police who reached at the scene few minutes after the accident, moreover he saw for himself how those cars collided beginning with the direction of their tyres, that therefore that drawing must not be contradicted by the drawing Biseruka Védaste drew for COGEAR which does not demonstrate how the vehicle collided, for it was drew basing on the testimony given two days after the accident and even the one who drew it did not have enough discernment to do so. [9] The counsel for SGF states that the Court did not rely on the statement of the witnesses because they were contradicting, which led it to rely on the photo submitted by SFG illustrating how the vehicle of Gasirikare was not knocked by unidentified vehicle. He also states that SFG did not corrupt Biseruka, the driver that he contradicts himself, that the money it gave him was to compensate for the days he spent going to testify in the Prosecution, where he explained that he is Gasirikare who ordered him to lie that the accident was caused by unidentified vehicle so that SFG compensates him, but he realized that he must say the truth and he confirms that the accident was caused for the vehicle lost the brake. [10] He also adduces that in the organs of investigations, Biseruka Védaste said that the accident was caused by the long lights turned on ,on the vehicle of Fuso model which was unidentified, and that it knocked Gasirikare’s vehicle on the left side which led him to fall off the bridge, yet at the time he declared the accident in COGEAR he said that the accident was caused because the vehicle of Land Cruiser model pointed the lights of "spot light” towards him, and that it did not knock the vehicle he was driving ,and he gave it the drawing illustrating them, that thus it cannot give him the compensation he requests for because the accident on his vehicle was not caused by unidentified vehicle, and that he contravened with article 28,1o and 2o of the Law n° 52/2011 of 14/12/2011 establishing the Special Guarantee Fund for automobile ,because he did not speak the truth about the happening of the accident. He finds therefore Gasirikare seeing that his vehicle has been damaged and he had only liability insurance against third party, led him to begin searching for other means how SFG compensates him.

## Page 4

4

THE VIEW OF THE COURT [11] Article 9 of the Law N° 21/2012 of 14/06/2012, relating to the civil, commercial, labour and administrative procedure, states that "every plaintiff must prove a claim. Failure to obtain proof, the defendant wins the case”. [12] The written statement recorded by the Judicial Officer on 20/10/2007,relying on the testimony of Kabayiza Jean Baptiste, Mukamana Madeleine, Mazimpaka Théogène who were in Gasirikare’s vehicle at the eve of the accident even those of Biseruka Védaste who was driving it, demonstrate that the accident was caused by the vehicle of the Fuso model whose number plate was not identified for it knocked the vehicle Toyota Hiace RAA 631 X of Gasirikare on the left side when they were bypassing in corner at Shyorongi which led the one of Gasirikare to fall off the bridge. He made also the drawing illustrating where those vehicles collided,(point of collusion) [13] The witnesses mentioned above they again emphasized those testimonies themselves when they were in the Prosecution on 09/11/2007, except Mukamana Madeleine did not say that those vehicles collided because she only said that she saw the lights of the vehicle which caused the accident. That testimony concurs with the arguments of Gasirikare in the Court’s proceedings. [14] In the declaration of the accident of 25/10 /2007 done in COGEAR for Biseruka Védaste, where that vehicle was insured, explaining that the accident was caused by the car of Land Cruiser beamed him with spot lights, that he avoided it from the right side of the road he was driving on which led him to fall off the bridge. It also drew a drawing illustrating that vehicle never collided with the car he was driving. [15] In the written statement of the witnesses, Biseruka Védaste, Mukandori Gloriose, Mukangarambe Clotilde, Mukarusagara Edith, Mukayisenga Donata and Tumugire Célestin who were in the vehicle of Gasirikare at that time recorded in the Prosecution on 14/07/2009 explained that there is no vehicle which beamed them with long lights they saw before the accident, instead the accident was caused for the vehicle he was driving lost the brake, though Tumugire Célestin confirms that he does not know the cause of the accident. Biseruka Védaste added on that he is Gasirikare who had ordered him to say that the accident was caused by unidentified vehicle so that the insurance company can give him compensation. [16] And even the investigation done by the High court on 26/10/2011, the witnesses Mukamana Madeleine, Mukarusagara Edith and Mukayisenga Donata who were in Gasirikare’s vehicle at the eve of the accident, they confirmed that they did not see any vehicle turning lights towards them, that it can be considered as the one which caused them the accident. They also said that the truth is that they don’t know what caused the accident because Mukamana Madeleine said that she lost conscious when she heard something banging on the vehicle they were in, Mukarusagara Edith says that when they were at the hospital she heard Biseruka Védaste saying that the vehicles collided, after they told her to say that it had lost the brake, for

## Page 5

5 Mukayisenga Donata says that she became conscious after the accident when they are saying the vehicle lost the brake. [17] The Court finds that what Gasirikare’s arguments that SGF corrupted Biseruka Védaste with fifty thousand francs (50,000Rwf) so that he looks for the witnesses who will assist him to contradict the testimonies given in the Judicial Police, they have no ground, for after five days (5) when the accident had occurred even before meeting SFG, Biseruka Védaste himself had already contradicted himself because he himself told COGEAR that the accident was caused because he dodged a vehicle of Land Cruiser model which was going to knock him which led him to fall off the bridge, he submitted to it the drawing illustrating how those vehicles did not collide. [18] The Court again finds, apart from Biseruka Védaste,there also other witnesses mentioned above who were in the vehicle of Gasirikare at the eve of the accident contradicted themselves on what caused that vehicle an accident, its obvious that their testimonies cannot be given value pursuant to what are provided by article 65 of the Law no 15/2004 of 12/06/2004 relating to evidence and it’s production 1,for they cause doubt on what caused that car the accident, Hence even the statement made by the Judicial Police Officer on 20/10/2007 relying on those testimonies cannot be given value. [19] The Court finds that there is no evidence produced by Gasirikare demonstrating unskeptically that the accident on his vehicle was caused by the vehicle of Fuso model which was not identified; even there is no reason for the evidence of the photo which the High Court relied on to render the judgement. [20] Regarding the damages requested by Gasirikare in this case, The Court finds that it is not necessary to examine them, for they are only charged on that who committed a fault to another as they are provided by article 258 CCLIII2, yet it’s not as such in this case as explained above. III.THE DECISION OF THE COURT. [21] Decides that the appeal of Gasirikare Evariste is without merit; [22] Decides that nothing has changed on the judgement RCA 0173/10/HC/KIG rendered by the High Court [23] Orders Gasirikare Evariste to pay the court fees of this case equal to 46,500Rw including that he was charged in the High Court, and failure to pay in a period of eight days, that amount of money is to be deducted from his assets through government coercion.

1 That article states that “only the Court can assesses the relevance, pertinence and admissibility or rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly consider their knowledge of the facts and the objectivity and sincerity of their testimonies.” 2 That article stipulates that” any act of man, which causes damage to another obliges him by whose fault it happened to repair it.”