GATARE v GASANA ET AL

GATARE v GASANA ET AL

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-04-24 - Case/document no.: RS/INJUST/RC 00004/2023/HC/NYZ - Collection: High Court

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GATARE v GASANA ET AL. [Rwanda HIGH COURT-RS/INJUST/RC 00004/2023/HC/NYZ (Ndagijimana, P.J., Badara, Udahemuka, J.) 24 April 2024] Procedural law – Appeal– System failure– Where the statutory time limits for lodging an appeal are exceeded due to a malfunction in the electronic case management system through which claims are submitted, and this failure was duly reported to the Court, such a circumstance constitutes an exceptional ground warranting the admission and examination of the appeal. Civil procedure – Execution of the judgement – Getting linked to the case file –Refusal to provide email address – When a party to the proceedings refuses to provide an email address for purposes of being notified during auction proceedings, he or she may not later claim that his or her property was sold at an undervalued price, as he or she voluntarily forfeited their right to contest such price by refusing to be notified through the system. Facts: This case started with Gatare’s private prosecution against Gasana, Nyiransabimana, Minani, Mukamana and Munderere for the offence of providing the court with a false testimony during a trial that convicted him of an offence of using forged documents; he as well wanted the accused to be convicted for providing the court with false testimony but the court found his allegation unfounded, and it ordered him to pay Frw 1,250, 000 for damage compensation. The judgement turned res judicata and

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Gasana and his co-winners approached Niyonzima, a court bailiff, for their judgement execution, and the latter initiated the execution procedure by auctioning one of Gatare’s property (a forest). Gatare found the auction illegal, and seized the Primary Court of Kibeho for its annulment, but the court found his allegation without merit. On 1/07/2022, the complainant appealed the above ruling before the Intermediate Court of Nyamagabe but the accused argued that the complainant’s appeal is legally time-barred and thus his appeal is inadmissible. On the other hand, the claimant argued that he had filed his appeal in due time limits, but owing to a failure of case management system, his appeal was not submitted and he thereof notified the court. However, the court found his appeal baseless. The claimant proceeded with application for injustice related case review and his case was reheard by the High Court, Nyanza Chamber, and the latter examined whether Gatare’s appeal was supposed to be admitted due to some unpredictable and compelling circumstances that made his appeal come in late and whether the public auction of 15/06/2022 should be nullified due to the alleged illegality. Gatare explains that he filed his claim within the legally prescribed time limits and that, having been prevented by a technical system failure from paying the required court fees, he duly notified the Court in accordance with the applicable legal provisions and was advised to wait until the system resumed functionality. He further argues that the auction should be nullified because it was conducted

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on dates different from those officially announced, the property was sold at an excessively low price, and he was not properly notified of the auction proceedings. The accused argued that the claimant’s appeal came in late arguing that should the system fail to work, he could have handed his submissions to the Court but he did not. They went on to say that they informed him of the public auction proceedings but he declined to sign related documents and refused to provide his email address to get a system link for related information. The court found his claim admissible but held that the contested auction has been legally conducted. Held: 1. Where the statutory time limits for lodging an appeal are exceeded due to a malfunction in the electronic case management system through which claims are submitted, and this failure was duly reported to the Court, such a circumstance constitutes an exceptional ground warranting the admission and examination of the appeal.

2. When a party to the proceedings refuses to provide an email address for purposes of being notified during auction proceedings, he or she may not later claim that his or her property was sold at an undervalued price, as he or she voluntarily forfeited their right to contest such price by refusing to be notified through the system. The application for the review of the judgment on ground of being vitiated by injustice lacks merit. Statutes and statutory instruments referred to:

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Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, articles 20, 111, 253, 255, 275 and 275. No cases were referred to.

Judgment

BACKGROUND OF THE CASE

Gatare Faustin seized the Intermediate Court of Nyamagabe of a private indictment against Nyiransabimana Gaudence, Minani Védaste, Mukamana Louise, Gasana Gilbert for an offence of providing the court with false testimonies during a trial on case RP 0109/16/TGI/NYBE that convicted him on the offense of using forgery; he as well wanted them to be convicted and sentenced for an equal term of his six years of imprisonment for their offence of providing the court with false testimonies. The trial ended with the court acquitting the accused, and Gatare was ordered to give them one million and two hundred and fifty thousand (Frw 1,250,000) for damage compensation.

When the judgement turned final, Nyiransabimana Gaudence, Minani Vedaste, Mukamana Louise, Gasana Gilbert and Munderere Alphonsine, approached Counsel Niyonzima Jean Felix, the Court bailiff, and requested him to execute the judgement and give them the

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compensations they won. Counsel Niyonzima Jean Felix initiated the execution by a certain public auction that was conducted on 14/06/2022.

On 22/6/2022, Gatare Faustin filed a claim before the Primary Court of Kibeho and prayed for the annulment of the public auction of 14/06/2022, lamenting of its illegalities and the violation of auction seizure and notice procedures; lamenting that the auction was poorly concluded and grieving that he had written to the Court Bailiff, Counsel Niyonzima Jean Félix, requesting the suspension of the auction proceedings in order to settle the debt amicably. The bailiff agreed to this request, however, the latter disappointed him by later serving him with the auction notices.

Counsel Niyonzima Jean Felix and his attorney assert to have broken no law; arguing that for issues to do with the seizure, a related document is electronically generated, printed out and taken to the property location in the presence of both the property owner and local administration authorities; and such a procedure was fully observed as it is evidenced by the seizure statement of 13/05/2022 as signed by the Executive Secretary of Mbanda Cell, who, as well indicated Gatare Faustin’s refusal to sign the document, yet present. The claimant’s argument about the auction seizure on a non-existing property is equally wrong since the seized forest exists as it is evidenced by the property valuation report. With regard to the auction notices, the first auction notice was issued on 26/05/2022, and it has been handed to the concerned persons including the Cell Administration and

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Gatare Faustin himself on 26/05/2022, and it is true that the notice scheduled about three rounds of auctioning, and the second auction notice was issued to them on 06/06/2022 scheduling two rounds of auctioning as it could not include the third round, yet one round had already been done. Therefore, a simple fact that both notices were footnoted as done on the 25/05/2022 is not material enough to call for auction annulment. This concern is a minor typographical error, and both notices came completing each other.

Minani Vedaste, Mukamana Louise, Gasana Gilbert, Nyiransabimana Gaudence and Munderere Alphonsine submitted that they were not involved in any aspect of the public auction proceedings and thus do not understand why Gatare Faustin included them as parties to the present case.

In judgment RC 00099/2022/TB/KIB rendered on 05/07/2022, the Primary Court of Kibeho held that the public auction conducted on 15/06/2022 involving the property of Gatare Faustin registered under UPI 2/03/03/04/3635 was valid and not nullified. The Court ordered Gatare Faustin to pay damages in the amount of Frw 100,000 to Nyiransabimana Gaudence, Frw 510,000 to Minani Védaste; Frw 510,000 to Mukamana Louise; Frw 510,000 to Gasana Gilbert; Frw 100,000 to Munderere Alphonsine; and Frw 510,000 to Counsel Niyonzima Jean Felix.

For making the above decision, with regard to the alleged illegal seizure, the court considered the existence of the seizure statement of 11/05/2022 done at the address

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of the caveated property, whereby the statement indicates that the court bailiff came around the address of the seized property along with Munyaneza Ildephonse, the Executive Secretary of Mpanda Cell, who signed and sealed the seizure statement with an endnote about Gatare Faustin’s refusal to sign the property seizure statement. With regard to the auction notices, the court found the existence of two auction notices, whereby one the notices were handed to the concerned persons on 26/06/2022, while the other was served on 06/06/2022. The court found that the first auction notice clarified about the auction starting and results dates, and in case of no successful bidder, the auction was supposed to be relaunched up to its’ third round. While the second notice indicated that the auction was at its second round, as the first round had already been done with.

Regarding the claim that the public auction was improperly concluded, the Court found that a report had been duly prepared, detailing how the auction was finalized, identifying the successful bidder and how the creditors were paid. Furthermore, the Court noted that Gatare Faustin was requested to provide his bank account so that the remaining balance due to him could be transferred. Concerning his assertion that he had requested the court bailiff to suspend the auction in order to settle the debt voluntarily, the Court clarified that Gatare Faustin had shown no genuine willingness to pay, as the auction notice he received clearly included the bank account number of Counsel Niyonzima Jean Félix, which was account nº 4004100232354 at EQUITY BANK, and

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had indicated that the successful bidder was required to make payment into that account.

On 13/07/2022, Gatare Faustin appealed the above ruling before the Intermediate Court of Nyamagabe, but the accused raised an objection over his appeal admissibility due to his appeal prescription, they argued that the appealed judgement has already turned decisive as it now bears an enforcement formula since he delayed for file his appeal. They argued that the evidence for Gatare’s late appeal is his appended evidence of 13/07/2022 which proves that his failure in paying the appeal filing fee occurred on the 13/07/2022.

Gatare Faustin argued that he initiated the appeal process on 08/07/2022, evidenced by the fact that the case was registered under No. PST RCA 00021/2022/TGI NYBE. However, his attempts to proceed were unsuccessful due to the rejection of the court fee. He stated that he managed to pay the fee on 13/07/2022, which is also the date on which the claim was officially filed, as evidenced by a screenshot he took that day. He argued that his opponents contributed to the delay by already initiating enforcement formula, which were immediately accepted. He therefore requested that his appeal be admitted, as the delay in filing was due to factors beyond his control and the causes of the delay ceased as of 13/07/2022.

On 26/07/2022, the Intermediate Court of Nyamagabe rendered the judgment RCA 00023/2022/TGI/NYABE and dismissed Gatare’s appeal, and the same Court held that the judgment RC

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00099/2022/TB/KIB rendered by the Primary Court of Kibeho stays. The Court has also ordered Gatare Faustin to give Niyonzima Jean Felix, Mukamana Louise, Gasana Gilbert and Minani Vedaste a total amount of Frw 500,000 for counsel fees at ratios of Frw 125,000 for each. The court has as well ordered Gatare Francis to give Niyonzima Jean Felix Frw 50,000 for the procedural costs, and to give Niyonzima Jean Felix, Mukamana Louise, Gasana Gilbert, and Minani Vedaste, each Frw 100,000 for compensation over dragging them into unnecessary lawsuits. The Court has also enjoined him to give Munderere Alphonsine and Nyiransabimana Gaudence Frw 50,000 each for the procedural costs, and all the total charges amounted to Frw 790,000.

For reaching the above decision, the court considered facts that he started filing his appeal on 08/07/2022, whereby his appeal attempt got docketed under PST RCA 00021/2022/TGI/ NYBE, he kept trying filing his appeal but it never worked out due to a failing court fee payment system, which kept failing him until 13/07/2022, the date on which he finally managed to upload his appeal as it is evidenced by a related screenshot he took on the very date. It is therefore clear that his appeal on a summary procedure was legally time-barred since from 05/7/2022 up to 13/07/2022, the three working days have already elapsed. A fact that Gatare Faustin started his appeal filing on 08/7/2022 whereby he had a technical challenge with the court fee payment system, which is also done online, where he notified the court’s help desk clerk instead of communicating his challenge to the Court’s Chief Registrar, denotes that he contravened

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the provisions of article 20 of civil, commercial, labour and administrative procedure, until his appeal came in late on 13/7/2022, the date on which he wrote to the President of the Court explaining about a failure in court fee payment system. His appeal was time-barred, and he presented no any legal unpredictable and compelling reasons that led to his late appeal, and therefore not admitted.

Following the above ruling, the President of the Supreme Court confirmed that the judgment RCA 00023/2022/ TGI/NYBE rendered by the Intermediate Court of Nyamagabe is vitiated by injustice and the case was sent to High Court, Nyanza Chamber for rehearing. The case was registered under RS/INJUST/RC 00004/2023/HC/NYZ, and it was heard in public on 15/05/2024 with all the parties present. Gatare Faustin was assisted by Counsel Twagiramungu Vincent, Niyonzima Jean Felix stood for himself, while the other accused were assisted by Counsel Nshyimiyimana Celestin.

In his submission and pleading before the court, Gatare Faustin and his counsel argued that he made his appeal in due time limits, and even when the electronic court fee payment system failed him, he thereof notified the court as required, but the court went ahead and made a disfavouring decision; they argued that the court misinterpreted the provision of article 275 of CCLA procedure which clarifies about calculating days and hours deadlines, whereby the day of the concerned event must be excluded. They prayed the court to hold that

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Gatare Faustin observed the appeal time-limits, and he only delayed due to a system failure for court fees payment, and even when he approached the court for help, he was told to wait until the system refunctions, and that is when he filed his appeal as he had no any other option.

Gatare Faustin and his legal counsel argued that the conducted public auction was illegal. They lamented that the auction announcement made by Counsel Niyonzima Jean Felix, the Court bailiff, had clarified about Gatare Faustin’s auctionable property, its surface area and its actual market value, but the property was auctioned before the scheduled dates, and moreover on a derisory price, far less than 75% of its value as indicated by the announced property valuation report. They also averred that the auction was illegal due to a fact that it had no third round as it is legally provided, and as scheduled in the aforementioned announcement. The above facts make such an auction conducted on an unknown date questionable, more so that even the court bailiff who conducted it has no sure knowledge of its date since his auction deed states that the auction was conducted on 14/06/2022, while the statement on the auction proceeds distribution indicates that the property was auctioned on 15/06/2022. They argued that such a contradiction proves the existence of confusions during the auction process, and it is clear that the involved individuals had a different hidden agenda, other than executing the court’s decision and that is why the actual auction date was mistaken.

Gatare Faustin and his legal counsel argued that the Primary Court of Kibeho deliberately disregarded the

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law for judgment RC 00099/2022/TB/KIB by holding that the Court bailiff abode by the rules of the property seizure and auction announcement yet he violated all the auction- related modalities. The Court bailiff never notified Gatare, the property owner, of the auction modalities, he never informed the property owner of the property valuation report, leave alone the report’s prima facie imperfections whereby a land property of 19,478 Sqm considered at the current market value of 2700/Sqm, with the land alone costing Frw 52,590,600 without including the crops on it, was simply auctioned at unjustified derisory price of Frw 10,700,000, whereby the auction security fee was remarkably reduced, and the property value generally rebated. The court bailiff did not inform Gatare, the distrainee, of any details about IECMS auction modalities neither did he link him to the system before the auction is launched just as the letter of 02/06/2022 indicates it, the Court bailiff asked for Gatare’s email address on the 06/06/2022, yet the auction’s first round had already ended, and even the second round had already started since the first round began on 27/05/2022 and ended on the 03/06/2022 at 2 pm while the second round started on 05/06/2022.

Gatare Faustin and his legal counsel argued that the distrainee was not informed of the auction arrangement for him to exercise his legal rights that include looking for a preferable buyer or objecting to the inadequate prices from the first and the second rounds as it is provided under article 4 of the Ministerial Order n0 005/MOJ/AG/21 of 07/06/2021 relating to Execution of Enforcement Orders. Besides, the Court bailiff did not

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stick to his own auction timetable as it featured in the auction announcement and he violated the timetable as follows : The auction’s first round started on 27/05/2022 was meant to end on 03/06/2022 with the system releasing the successful bidder; while the second round was supposed to start on 05/06/2022 and end on 12/06/2022; and for these two first rounds, both the distrainer and the distrainee have a right to decline any auction price that is less than 75% of the property reference value as per the provisions of the above mentioned article 255 (2) of civil, commercial, labour and administrative procedure (CCLAP).

Gatare Faustin and his legal counsel argued against the Court bailiff’s submission whereby the latter stated that the successful bidder won the auction on its second round on 14/06/2022 and yet looking at his timetable, that was the date for starting the auction’s third round as it was slated to end on the 21/06/2022, arguing that such changes pose a question of whether the auction was really electronic or whether it was conducted analogly; since the electronic auction system cannot release the auction successful bidder’s names and his identity on the eve of the auction’s third round just as the announcements so display. Besides, the auction deed looks to be the court bailiff’s own creation yet such a document is normally electronically generated, and the Court bailiff simply signs it. They argued that Counsel Niyonzima Jean Felix has himself averred that the auction’s third round took place on 14/06/2022 as he said “… the auction deed and the auction announcement indicate that the auction’s third round took place on

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14/06/2022, and this alone debunks Gatare Faustin’s argument. Furthermore, judgement enforcement system indicates that the auction’s third round took place on the 14/06/2022” …. However, this very statement of his, contradicts his announced auction timetable, since it states that the auction’s third round would start on 14/06/ 2022 and end on 21/06/202, and this arrangement would be more appropriate as it better aligns with the system outlay.

Niyonzima Jean Felix argues that there the judgment RCA 00023/2022/TGI/NYBE is not vitiated by any injustice because the judgment RC 00099/2022/TB/KIB which Gatare Faustin was appealing before the Intermediate Court of Nyamagabe was rendered on 05/07/2022, while Gatare Faustin lodged his appeal on 13/07/2022, based on Article 188 paragraph 2 and Article 260 paragraph 5 of Law No. 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, and also based on legal directions issued in decisions rendered by the Court of Appeal in September 2022, from page 27 to 29 attached herein, where the Court of Appeal clarified that when counting the three (3) days to appeal a summary case, the day on which the decision is rendered is not excluded but is counted as the first day. It appears that 05/07/2022, the day the RC 00099/2022/TB/KIB judgment was delivered, was a Monday and is counted as the first day, 06/07/2022 was Tuesday and is the second day, and 07/07/2022 was Wednesday and is the third day, meaning that Gatare Faustin was required to file his appeal no later than 07/07/2022. Therefore, based on his own statements and evidence he submitted as discussed in the previous

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paragraph, where he began to appeal on 08/07/2022, it is evident that there was no injustice in case RCA 00023/2022/TGI/NYBE because Gatare Faustin filed his appeal out of time, as confirmed by the Intermediate Court of Nyamagabe in this judgment RCA 00023/2022/TGI/NYBE. Although Gatare Faustin claimed that the system did not generate a Billing Number for payment of court fees on 08/07/2022 when he began preparing his appeal as justification for filing on 13/07/2022, as shown by the system records of case RCA 00023/2022/TGI/NYBE, this does not override the fact that the date he himself admits, 08/07/2022, when he began preparing his appeal, was already beyond the legal time limit for filing an appeal.

Niyonzima Jean Felix argues that the auction was legally conducted. He explains that a date of 15/06/2022 that featured in the auction act as a date of the distribution of the auction proceeds was just a typographical error, more so that the auction deed together with the auction announcement make it clear that the auction’s third round took place on the 14/06/2022, and this version debunks Gatare’s arguments. He also argues that even the judgements enforcement system proves that the auction’s third round took place on 14/06/2022. Besides, he adds that the issue concerning the date of 15/06/2022 has never been litigated neither before the Primary Court of Kibeho, nor before the Intermediate Court of Nyamagabe, and regardless of its irrelevance, it still cannot be brought during the appeal before High Court, Nyanza Chamber.

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In their defense, Mukamana Louise, Munderere Alphonse, Minani Vedaste, Nyiransabimana Gaudence and Gasana Gilbert, argue that Gatare Faustin could have filed his appeal with reference to article 20 of civil, commercial, labour and administrative procedure, which allows him to file his appeal by handing his appeal submission to the seized court upon a written approval by the very Court’s chief Registrar. Under such a circumstance, the plaintiff can always submit his claim via the usual online system, and as paragraph one of the above article clarifies, and then later uploads his claim when the appropriate filing system reworks. They request the court to dismiss Gatare Faustin’s submitted evidence arguing that such documents are not generated from IECMS, as they look to be Gatare Faustin’s own creation, just a mere Microsoft Word document he falsified to justify his late appeal. They asserted that his document is not from IECMS since it features no IECMS link, neither does it display its generation source.

For this case, the following issues shall be examined.  Whether Gatare Faustin’s appeal was supposed to be admitted due to some unpredictable and compelling circumstances that made his appeal come in late ;  Whether the public auction of the 15/06/2022 should be nullified due to its illegality ;  Whether this case shall involve allowing damage compensations.

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II. ANALYSIS OF LEGAL ISSUES  Whether Gatare Faustin’s appeal was supposed to be admitted due to some unpredictable and compelling circumstances that made his appeal come in late

Gatare Faustin and his legal counsel argue that he lodged his appeal in due time limits, and even when the electronic court fee payment system failed him, he thereof notified the court as the law requires, but the court went ahead and made a disfavouring decision; arguing that the court misinterpreted the provision of article 275 of CCLA procedure which clarifies about calculating days and hours delay, whereby the day of the concerned event must be excluded. They pray the court to hold that Gatare Faustin observed the appeal time-limits, and he only delayed due to a system failure for court fees payment that, and even when he approached the court for help, he was told to wait until the system reworks, and that is when he filed his appeal as he had no any other option.

Niyonzima Jean Felix argues that there the judgment RCA 00023/2022/TGI/NYBE is not vitiated by any injustice because the judgment RC 00099/2022/TB/KIB which Gatare Faustin was appealing before the Intermediate Court of Nyamagabe was rendered on 05/07/2022, while Gatare Faustin lodged his appeal on 13/07/2022, based on Article 188 paragraph 2 and Article 260 paragraph 5 of Law No. 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, and also based on legal directions issued in decisions rendered by the Court of

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Appeal in September 2022, from page 27 to 29 attached herein, where the Court of Appeal clarified that when counting the three (3) days to appeal a summary case, the day on which the decision is rendered is not excluded but is counted as the first day. It appears that 05/07/2022, the day the RC 00099/2022/TB/KIB judgment was delivered, was a Monday and is counted as the first day, 06/07/2022 was Tuesday and is the second day, and 07/07/2022 was Wednesday and is the third day, meaning that Gatare Faustin was required to file his appeal no later than 07/07/2022. Therefore, based on his own statements and evidence he submitted as discussed in the previous paragraph, where he began to appeal on 08/07/2022, it is evident that there was no injustice in case RCA 00023/2022/TGI/NYBE because Gatare Faustin filed his appeal out of time, as confirmed by the Intermediate Court of Nyamagabe in this judgment RCA 00023/2022/TGI/NYBE. Although Gatare Faustin claimed that the system did not generate a Billing Number for payment of court fees on 08/07/2022 when he began preparing his appeal as justification for filing on 13/07/2022, as shown by the system records of case RCA 00023/2022/TGI/NYBE, this does not override the fact that the date he himself admits, 08/07/2022, when he began preparing his appeal, was already beyond the legal time limit for filing an appeal.

In their defense, Mukamana Louise, Munderere Alphonse, Minani Vedaste, Nyiransabimana Gaudence and Gasana Gilbert, argue that Gatere Faustin could have filed his appeal with reference to article 20 of civil, commercial, labour and administrative procedure, which

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allows him to file his appeal by handing his appeal submission to the seized court upon a written approval by the seized Court’s chief Registrar. Under such a circumstance, the plaintiff can always submit his claim via the usual online system, and as paragraph one of the above article clarifies, and he then later uploads his claim as the appropriate filing system reopens. They requeste the court to dismiss Gatare Faustin’s submitted evidence arguing such documents are not generated from IECMS, as they look to be Gatare Faustin’s own creation, just a mere Microsoft Word document he falsified to justify his late appeal. They assert that his document is not from IECMS since it features no IECMS link, neither does it display its’ generation source.

DETERMINATION OF THE

COURT

For this case, the disagreement lies into whether Gatare Faustin’s appeal was supposed to be admitted due to some unpredictable and compelling circumstances that made his appeal come in late owing to IECMS failure.

For the above issue, article 20 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure provides that the claimant him/herself, his or her counsel or representative files a claim by submitting submissions in a court through an approved electronic means. However, if this is not possible, the claim can be filed by the claimant by presenting the submissions to the court after obtaining a written approval for the Chief Registrar of the court to

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which the case is referred. In this case, the claimant is required to send to the court a copy of his/her submissions through an available electronic means and refer the case as provided for under paragraph one of this article, once the electronic problem ceases to exist.

Article 275 of the above mentioned Law provides that time limits set in terms of days and hours shall be calculated from date to date, or hour to hour. The day of the act or of an event that gave rise to the claim is not taken into account, but the day of expiration is included.

Article 278 of the same Law provides that if a party delays in complying with time limits of appeal procedures due to exceptional reasons that are beyond his/her control, the time limit for filing the appeal is extended until such reasons cease to exist.

The above mentioned provisions help resolving various issues related to claims filing, late appeals, and calculating time limits set in days.

The Court finds that Gatare Faustin filed his appeal late due to IECMS failure whereby he started filing his appeal on 08/07/2022, but IECMS failed him, and it refunctioned on13/07/2022, and that is when he successfully submitted his appeal against a certain judgment of 05/07/ 2022 rendered by the Primary Court of Kibeho.

The Court finds evidence proving that the IECMS was really down, and the evidence include a letter that Gatare Faustin wrote to the President the Intermediate

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Court of Nyamagabe on 13/07/2022 praying for the admission of his appeal. The evidence also includes an affidavit from Ndizeye M. Patrick, an Electronic Filing System (EFS) agent, who attempted helping Gatare file the appeal, and who testified that the court fee payment system was then not responding. He initiated his appeal on 08/07/2022, and he immediately reported the challenge to the Court’s help desk as the system so displays. Furthermore, he presented a screenshot that proves that the IECMS was down.

The Court finds that a fact that Gatare Faustin attempted filing his appeal and only failed due to a system failure, and of which he immediately reported to the court, constitutes an unpredictable circumstance that is beyond his control, which could have made his appeal admissible.  Whether the 15/06/2022 auction should be nullified on the grounds that it was conducted unlawfully

Gatare Faustin and his legal counsel contend that the conducted public auction was illegal. They argue that the auction announcement made by Counsel Niyonzima Jean Felix, the Court bailiff, had clarified about Gatare Faustin’s auctionable property, its surface area and its actual market value, but the property was auctioned before the scheduled dates, and moreover on a derisory price, far less than 75% of its value as indicated by the announced property valuation report. They also aver that the auction was illegal due to a fact that it had no third round as it is legally provided and was scheduled in the aforementioned announcement. The above facts make such auction

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conducted on unknown date questionable, more so that even the court bailiff who conducted it has no sure knowledge of its date since his auction deed states that the auction was conducted on the 14/06/2022, while the statement on the auction proceeds distribution indicates that the property was auctioned on the 15/06/2022. They argue that such contradiction proves about confusions during the auction process, and it is clear that the involved individuals had a different hidden agenda, other than executing the court’s decision and that is why the actual auction date was mistaken.

Gatare Faustin and his legal counsel argue that the Primary Court of Kibeho has deliberately disregarded the law for judgment RC 00099/2022/TB/KIB by holding that the Court bailiff abode by the rules of the property seizure and auction announcement yet he violated all the auction related modalities. The Court bailiff never notified Gatare, the property owner, of the auction modalities, he never informed the property owner of the property valuation report, leave alone the report’s prima facie imperfections whereby a land property of 19,478 Sqm considered at the current market value of 2700/Sqm, with the land alone costing Frw 52,590,600 without including the crops on it, was simply auctioned at unjustified derisory price of Frw 10,700,000, whereby the auction security fee was remarkably reduced, and the property value generally downturned. The court bailiff did not inform Gatare, the distrainee, of any details about IECMS auction modalities, neither did he link him to the system before the auction is launched just as the letter of 02/06/2022 indicates it, the Court bailiff asked for

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Gatare’s email address on 06/06/2022, yet the auction’s first round had already ended, and even the second round had already started since the first round began on 27/05/2022 and ended on the 03/06/2022 at 2 pm while the second round started on 05/06/2022.

Gatare Faustin and his legal counsel argue that the distrainee was not informed of the auction arrangement for him to exercise his legal rights that include looking for a preferable buyer or objecting to the inadequate prices from the first and the second rounds as it is provided under article 4 of the Ministerial Order n0 005/MOJ/AG/21 of 07/06/2021 relating to execution of enforcement orders. Besides, the Court bailiff did not stick to his own auction timetable as it featured in the auction announcement and he violated the timetable as follows : The auction’s first round that started on 27/05/2022 was meant to end on 03/06/2022 with the system releasing the successful bidder; while the second round was supposed to start on 05/06/2022 and end on the 12/06/2022; and for these two first rounds, both the distrainer and the distrainee have a right to decline any auction price that is less than 75% of the reference value as per the provisions of the above mentioned article 255 (2) of civil, commercial, labour and administrative procedure (CCLAP).

Gatare Faustin and his legal counsel argue against the Court bailiff’s submission whereby the latter stated that the successful bidder won the auction at its second round on 14/06/2022 and yet looking at his timetable, that was the date for starting the auction’s third round as it was slated to end on 21/06/2022, arguing that such changes

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pose a question of whether the auction was really electronic or whether it was conducted analogly; since the electronic auction system cannot release the auction successful bidder’s names and his identity on the eve of the auction’s third round just as the announcements so display. Besides, the auction deed looks to be the court bailiff’s own creation yet such a document is normally electronically generated, and the Court bailiff simply signs it. They argue that Counsel Niyonzima Jean Felix has himself averred that the auction’s third round took place on 14/06/2022 as he said “… the auction deed and the auction announcement indicate that the auction’s third round took place on 14/06/2022, and this alone debunks Gatare Faustin’s argument. Furthermore, judgements enforcement system indicates that the auction’s third round took place on 14/06/2022” …. However, this very statement of his, contradicts his announced auction timetable, since it states that the auction’s third round will start on 14/06/ 2022 and end on 21/06/202, and this arrangement would be more appropriate since it better aligns with the system outlay.

Niyonzima Jean Felix argues that the auction was legally conducted, explaining that a date of 15/06/2022 that featured in the auction act as a date of the distribution of the auction proceeds was just a typographical error, more so that the auction deed together with the auction announcement make it clear that the auction’s third round took place on 14/06/2022, and this version debunks Gatare’s arguments. He also argues that even the judgements enforcement system proves that the auction’s third round took place on 14/06/2022. Besides, he adds

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that the issue concerning the date of 15/06/2022 has never been litigated neither before the Primary Court of Kibeho, nor before the Intermediate Court of Nyamagabe, and regardless of its irrelevance, it still cannot be brought before the High Court, Nyanza Chamber.

DETERMINATION OF THE

COURT

The disputes in this case include whether the 15/06/2022 auction should be nullified on the grounds that it was conducted unlawfully.

For the above issue, article 253 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure provides that the Court bailiff is required, within forty-eight (48) hours after he or she has approved the value of the property to be auctioned, publish a notice of public auction that specifies the property to be auctioned, the owner of the property, the creditor, the purpose of the auction, location of the property, the date and time of the public auction . The notice of the public auction is published on the Database for judgements enforcement together with a photo and tittle of the property subject to public auction. A copy of the announcement must be given to the owner of the property, the creditor and the Executive Secretary of the Cell where the property is located and announced on the radio, television and in a newspaper operating in Rwanda. If the auction concerns an immovable property, the notice of a public auction is publicised by posting at the location of the property. The seized property cannot

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be auctioned within less than five (5) days from the publication of the auction announcement.

Article 255 (2) of the above mentioned Law provides that both the distrainer and the distrainee have the right to decline the offered prices for not more than twice in case no price reaches seventy-five per cent (75%) of the reference value. At the third round, the auctioned property is given to a bidder who offered the highest price.

For this case, it is in the finding of the court that the court bailiff issued an announcement for an electronic auction, and the first round was slated on 27/05/2022 from 2 pm ; and the system was to release the highest price on 03/06/2022 at 2 pm. And in case of no successful bidder, the second round of the auction was to resume on 05/06/2022, and the auction system was to release the highest price on 12/06/2022 at 2 pm. And again if no bidder succeeds, the auction’s third round was to resume on 14/06/2022, and the system was to release the highest price, and the names of the involved bidders and their respective prices on 21/06/2022 at 2 pm, and the auctioned property was to be taken by a bidder with the highest offer.

The Court finds that the concerned public auction was generally legally conducted ; a part from some slight typographical errors, such as proper dating, whereby the Court bailiff made some minor errors, but for the majority of the deed, the auction was successful. Some of the errors include an incorrect date of 15/06/2022 which was mistaken for the auction date yet the correct date of the auction was 14/06/2022 as it is indicated by the auction

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deed of 15/06/2022 ; whereby the auctioned property was bought by Uwizeyimana Celestin at a tune of Frw 2,502,000. Therefore, a mere fact that the Court bailiff mistook the auction date for 15/06/2022, is an obvious error and is not material enough to call for the auction invalidation.

With regard to Gatare Faustin’s complaint over having not been informed of the auction’s arrangement, the Court finds that he got legally informed of the auction’s details but he kept declining signing the related documents as it is evidenced by a set of the appended proof, whereby he personally declined to provide his Email address for a link into IECMS auction procedure.

With regard to the property’s alleged derisory price, the Court finds that Gatare Faustin had all the rights to oppose any inadequate price ; but since he declined to provide his Email address for auction related information, he deprived himself all the rights to oppose any derisory price.

Considering all the above provided explanations, the Court finds that the public auction of 14/06/2022 had been legally conducted.  Whether this case involves allowing damage compensations.

Counsel Niyonzima Jean Felix prayed the High Court, Nyanza Chamber to order Gatare Faustin to refund him for Frw 1,000,000 that he paid a lawyer who prepared submissions and pleaded this case, he also requested for a

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bill cost of Frw 500,000 for expenses incurred on paper scanning, photocopying, printing, communications and transport, and he then requested for 2,000,000 for moral damages.

Mukamana Louise and her co-defendants prayed the Court to order Gatare Faustin to refund them for Frw 1,100,000 for procedural fees they each spent for this case, the sum includes Frw 500,000 for Counsel fee per each, 100,000 Rwf for the bill costs per each, and each requested Frw 500,000 for moral damage compensation over dragging them into unnecessary lawsuits. Their request was made with reference to article 111 of CCLA procedure.

Minani Vedaste prayed the Court to order Gatare Faustin to refund them for Frw 1,100,000 for procedural fees they each spent on this case. the sum includes Frw 500,000 for counsel fee per each, Frw 100,000 for the bill costs per each, and each requested Frw 500,000 for moral damage compensation over dragging them into unnecessary lawsuits. Their request was made with reference to article 111 of CCLA procedure.

Nyiransabimana Gaudence prayed the Court to order Gatare Faustin to refund them for Frw 1,100,000 for procedural fees they each spent on this case, the sum includes Frw 500,000 for counsel fee per each, Frw 100,000 for the bill costs per each, and each requested Frw 500,000 for moral damage compensation over dragging them into unnecessary lawsuits. Their request was made with reference to article 111 of CCLA procedure.

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Munderere Alphonsine prayed the Court to order Gatare Faustin to refund them for Frw 1,100,000 they each spent on this case, the sum includes Frw 500,000 for counsel fee per each, Frw 100,000 for the bill costs per each, and each requested Frw 500,000 for moral damage compensation over dragging them into unnecessary lawsuits. Their request was made with reference to article 111 of CCLA procedure.

Gasana Gilbert prayed the Court to order Gatare Faustin to refund them for Frw1,100,000 they each spent on this case, the sum includes Frw 500,000 for counsel fee per each, Frw 100,000 for the bill costs per each, and each requested Frw 500,000 for moral damage compensation over dragging them into unnecessary lawsuits. Their request was made with reference to article 111 of CCLA procedure.

DETERMINATION OF THE

COURT

Article 111 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure provides that a claim for representation fees is an incidental claim to the principal claim aiming to repay expenses incurred during judicial proceedings. The claim for legal costs is adjudicated at the same time with the principal claim. It can also be admitted and adjudicated even if the principal claim has not been admitted.

Article 26 of regulation n0 01/2014 fixing the scale of fees for Advocates provides that The Advocate for the

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applicant who has prepared the file and drafted documents may claim a base fee ranging from 500,000 RWF to 5,000,000 FRW, to which shall be added, in the event of recovery whether doing it directly or indirectly through his/her Agent, an additional fee for recovery determined according to the percentages set up in point II of Article 23.

The Court finds that Nyiransabimana Gaudence, Minani Vedaste, Mukamana Louise, Gasana Gilbert and Munderere Alphonsine were legally represented in these proceedings, therefore, Gatare Faustin ishould be ordered to pay them legal representation fees (counsel fee) in the amount of five hundred thousand Rwandan Francs (500,000 FRW) collectively.

With regard to the damages claimed by Niyonzima Jean Felix, the Court finds, in its discretion, that he should be awarded procedural fees in the amount of one hundred thousand Rwandan Francs (FRW 100,000), as he did not provide supporting evidence for the other damages he claimed. III. DECISION OF THE COURT

Holds that the application filed by Gatare Faustin for the review of judgment RCA 00023/2022/TGI/NYBE on grounds of injustice lacks merit;

Holds that judgment RCA 00023/2022/TGI/NYBE rendered by the Intermediate Court of Nyamagabe is sustained ;

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Orders Gatare Faustin to pay Nyiransabimana Gaudence, Minani Vedaste, Mukamana Louise, Gasana Gilbert and Munderere Alphonsine, five hundred thousand (Frw 500,000) for Counsel fee collectively, and give Niyonzima Jean Felix one hundred thousand (Frw 100,000) for procedural costs.

Orders that the court fee be transferred to Public treasury.