GATSIBO DISTRICT v. RUZABARANDE ET AL

GATSIBO DISTRICT v. RUZABARANDE ET AL

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-07-26 - Case/document no.: RADA 0004/14/CS - Collection: Supreme Court

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GATSIBO DISTRICT v. RUZABARANDE ET AL. [Rwanda SUPREME COURT – RADA 0004/14/CS (Mutashya, P.J., Munyanyeri, and Gakwaya, J.) July 26 , 2015] Administrative procedure – The status and interest of the District to begin an action – A district has the status to begin an action but its mayor is summoned in the name of the district. Administrative procedure – The Jurisdiction of the Supreme Court as an appeallante court basing on the damages awarded in the appealed judgment – All the damages awarded in the appealed judgment are the ones considered in dertemining the appealante jurisdiction of the Supreme Court, not the separate damages awarded to each particular party. Administrative procedure – Ground for inadmissibility of the appeal – a case lost by a party on the same grounds in the first and second is not appealed for to the Supreme Court. Facts: Ruzabande and et al sued Gatsibo district in the Intermidiate Court of Nyagatare claiming that it unlawfully possessed their plots of land , and then transferred them to COOPRORIZ – NTENDEZI without compasating them. In the defence of Gatsibo district , it adduced that it repossessed its marshland’ so that land is not for the other party.. That Court held that Gatsibo District unlawfully took the land of which it was taken to court because it did not first compensate or pay the value of the properties which were on that land. It was

ordered to give to Ruzabarande et al adequate compensation, pay for the value of the property and moral damages. Both parties appealed in the High Court , Gatsibo District claiming that the it was charged damages and moroever its a government marshland while Ruzabarande et al argued that they were awarded inadequate damages . That Court held that the appeal of Gatsibo District has no merit and Ruzabarande et al were awarded counsel fees in addition to the one which was awarded to each at the first instance level for counsel fees. Gatsibo District appealed again in the Supreme Court .During the Court proceedings Ruzabarande et al. raised the following three objections of inadmissibility; the district sued in its own name instead of suing in the name of it’s Moyor, the damages awarded in the appealed judgment do not amount to fifty million because the District pleaded with 37 residents each had his/her own submission , sued in his /her own name and each paid the court fees ,eventhough the Court awarded damages amounting to 200,000,000Frw but no individual was awarded damages amounting to 50,000,000Frw and another one is that the District appealed ajudgment it lost on the first and second level on the same ground. Regarding the first objection, the District of Gatsibo avers that the Law provides for the summoning but not for the lodging of the claim, on the second objection it

asserts that the subject matter is a government marshland, therefore laws regulating marshland should be relied on istead of basing on the amount of money and on the third one it states that the Judge in the Intermidiate Court held that the land is a marshland , implying that its a public property of the government and that decision is not apparent in decisions on the High Court. Held: A district has the status to begin an action but its Mayor is summoned in the name of the District

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All the damages awarded in the appealed judgment are the ones considered in dertemining the appealante jurisdiction of the Supreme Court, not the separate damages awarded to each particular party.In holding that Gatsibo District loses the case both court explained eventhough the subject matter of this case is a marshland, its not a ground for demolishing and destroying the properties of Ruzabarande et al without adequately compasating them while that land was given to them by competent authority which issued them with the ownership document , Gatsibo District should have adequately compasated them if it wanted to reposses it. Therefore Gatsibo District lost the case on the first level and the second level on the same grounds. A case lost by a party on the same grounds in the first and second is not appealed for to the Supreme Court. The objection raised has merit. The appeal is inadmissible; Court fees on the appealant. Statutes and statutory instruments referred to: Organic Law n° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court ,article28, Law nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 3,31, No cases reffered to. Judgment

THE BACKGROUND OF THE CASE [1] This case begun in the Intermidiate Court of Nyagatare, were Ruzabarande et al. accussing Gatsibo district for taking their land and later gave it to COOPRORIZ – NTENDEZI to grow rice, they request the Courd to order the district to compasete them the value of the land and the property which was on that land. In the defence of Gatsibo District , it adduced that it repossessed its marshland of Ntendezi. Judgment RADA 0038 – 0076/TGI/NYG, was rendered by that court on 11/7/2013, were it ruled that Gatsibo District unlawfully possessed the land of Ruzabarande et al because it did not adequately compaste them, it ordered it to pay them adequate compensation , the value of the property on the land and related damages. [2] Gatsibo District and Ruzabarande et al. appealed to the High Court, chamber of Rwamagana .. Gatsibo District adducing that the Court charged it damages when moreover that was a government marshland and Ruzabarande claiming that the court awarded them less damages considering the time it has been possessing it. [3] On 17/4/2014 that Court rendered the Judgment RADA 0016/13/HCI/RWG - RADA 0054/13/HCI/RWG,,and ruled that the appeal of Gatsibo District has no merit and the appealed judgment has changed only on the counsel fees,,each one to be given 30.000 Frw in adition to 100.000 Frw of counsel fees which was awarded to each one of them at the first instance level

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[4] Gatsibo District was not contented with the ruling and appealed in the Supreme Court. Counsel Rumenge Victor raised the following three objections for inadmissibility of the claim; the district sued in its own name instead of suing in the name of its Moyor, the damages awarded in the appealed court do not more than 50 millions and the district lost on the same ground on the first and the second level. [5] The case was heard in public on 19/05/2015 wereby the Court first examined the objections raised, Ruzabarande et al. were assisted by Counsel Rumenge Victor, and Counsel Kayiranga Bernard representing Gatsibo District. II. ANALYISIS OF THE OBJECTIONS RAISED IN THIS CASE. Regarding the objection that Gatsibo District sued on its own instead of suing in the name of its mayor. [6] Counsel Rumenge Victor adduce that the first objection is the irregularity in instuting the claim because Gatsibo district ( moral person) instituted a legal claim on its own moreover it’s a government organ ,which had to sue in the name of it’s Mayor. He explains that as usual when a government organ institutes an legal action it does so in the name of its administrator or in the name of a representative of that government institution [7] He argue that article 31 of n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, provides that the District (moral

person ) is summoned in the name of its Mayor and it should be the same when instituting a claim and its emphisezed by article 2 of that law in its first paragraph were it provides the requirements for the admissibility of the claim were it states that a claim cannot be accepted in court unless the plaintiff has the status, interest and capacity to bring the suit. hence Gastibo District do not have the capacity to institute a legal action. [8] Counsel KAYIRANGA Bernard state that the objection has no merit because the Mayor of Gatsibo District is the one who requested the State Attorney to institute an action and plead for the District and appealed the case in which it was sued, therefore Gatsibo District instituted an action in the name of its Mayor , and even in the Intermidiate Court the district was represented by its Mayor ,thus the Mayors signutre was not necessary .He affirms that article 31 of the Law no 21/2012 mentioned above provides for the serving a summon but not instituting a claim.

THE VIEW OF THE COURT [9] Article 3 of the Law n° 21/2012 of 14/06/2012, stated above , provides that “only the interested parties can begin an action, except when the law provides otherwise. They have the right at any time to withdraw their claim before judgement or before its prescription in accordance with the law . And article 31 of that law regards the special procedure of summon , the Mayor of the district is summoned in the name of the district. [10] Pursuant to those articles, the Court is of the view that the lawmaker established that who ever seeks to intiate an action has to submit a claim , but during the summoning of he parties , there those who are summoned in a special procedure, a district is not summoned as a district but it must be summoned in the name of its Mayor , which imply that its not necessary for the district to institute a legal action in the name of its mayor but its summoned in the name of it’s mayor. .

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[11] Pursuant to the explanations above the Court is of the view that the assertations of Counsel Rumenge Victor that Gatsibo district as a plaintiff in this case do not have the competence has no merit, the objection of inadmissibility of the appeal of Gatsibo District on the ground that it was not lawfully loged has no merit. Regarding the objection of inadmissibility on the ground of pecuniary damages not mounting to 50 millions . [12] The Counsel RUMENGE Victor states that they found the second objection later and they submitted it to the Court in addition submission, it concerns that the Supreme Court has the jurisdiction for hearing the cases rendered by the High Court if they were awarded in the damages of 50,000,000Frw or there was the disputes, and the value of the subject matter be confirmed by the judge that it is equal to 50,000,000Frw, however in this case Gatsibo district pleads with 37 villagers whereby every one made his own submission, claim and court fees; also everyone presented what he/she requests, moreover the Court rendered the judgment for each person that in rendering the judgment, the Court did not award to one person the damages of 50,000,000Frw, but additioning those damages are amounting to 200,000,000Frw; that is the reason why they pray for not admitting the appeal. He concludes in presenting the case to be reffered on because the subject matter

are similar, that case is RADAA 0012/12/CS rendered on 14/06/2013, Gatsibo district vs NTEZIRIRAZAZA Adrien et.al. In that case, this Court held that the claim of Gatsibo district should be inadmissible because it appealed both Courts for the similar grounds. [13] Counsel KAYIRANGA Bernard states that also this objection is baseless, because the subject matter is the swamp land, that even it is the old laws or the current laws are providing for that many plots of land falls into the public assets of the Government, and also the Court accepts that the subject matter is swamp, but it disregarded the law governs the swamps, public property of the Government; therefore it is impossible to be relied on monetary value because they are not comparing to the public property of the Government. He continues in arguing that the fact that the Counsel for those who files against Gasabo District states that they were awarded the damages which are few to 50,000,000Frw, it is to change the subject matter because it the government assets, and the parties agree them, thus the appeal falls into the jurisdiction of this Court because that objection is baseless.

VIEW OF THE COURT [14] Article 28, paragraph 7 of the organic law n° 03/2012/OL of 12/06/2012 mentioned above provides for that he Supreme Court shall have appellate jurisdiction over cases heard and decided in the first instance by the High Court, the Commercial High Court or by the Military High Court, if involve judgment in respect of which there was an award of damages of at least fifty million Rwandan francs (Rwf 50,000,000), or when the value of the case , as determined by the judge in case of a dispute, is at least fifty million Rwandan francs (Rwf 50,000,000). [15] The Court finds the damages charged to Gatsibo district at the High Court were awarded in one judgment RADA 0016/13/HC/RWG-RADA 0054/13/HC/RW, moreover they are exceeding to 50,000,000Frw. [16] Whereas stating that every pleader was awarded the damages which are not exceeding to 50,000,000Frw , it will not be bases on for calculating the damages which were charged in that judgment, because the legislater provided the damages which were awarded in judgment, he/she did not provide the damages awarded to everyone pleader in the judgment therefore according to what

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provided by article 28(7) of the organic law n° 03/2012/OL mentioned above, the objection for lack of jurisdiction which is basing on the requested value of the damages, has no merit. Concerning the objection for lacking the jurisdiction of Supreme Court because the appellant lost the case for the similar grounds at the first and second instance [17] Counsel RUMENGE Victor states that the third objection is for the Suprepreme Court could not hear the appeal of Gatsibo district because it was lost the case at the first and second instance for the similar grounds, moreover article 28, al.9 determining the organization, functioning and jurisdiction of the Supreme Court, provides for that a case lost by a party to proceedings in the first and second instances basing on similar grounds shall not be appealed for to the Supreme Court. He explains that at the first instance, the intermediate Court of Nyagatare, on page nine paragraph 24 in the judgment rendered on 31 July 2013, declared that even if the subject matter is a swamp ans as it is explained, the district repossessed for the public interest while it gave it Rizabarande Eustache and his mates, the judge held that the plaintiffs are still in possession of that place through the culture, sale or being given due to the sharing, whereas at the High Court , Rwamagana Chamber, the Court declared that the land in litigation belongs

to the people who sue Gatsibo district at page eight paragraph eleven and also demonstrating the way they acquired it, it motivates well also that one of them acquired it naturally by their parents, others bought it by those who are shared it. [18] Kayiranga Bernard states that the objection for that the Gatsibo district lost the case due to the similar grounds in two Courts, it is not true because the judge of Intermediate Court held that it is swamp, which means the public property of the Government and that decision does not indicate among the decision of the High Courrt, therefore that objection has no merit.

VIEW OF THE COURT [19] Concerning the jurisdiction of the Supreme Court, article 28 (5) of the organic law n° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, provides for that a case lost by a party to proceedings in the first and second instances basing on similar grounds shall not be appealed for to the Supreme Court. There must be examined in this judgment whether the reasons which led Gatsibo district to lose the case for the first instance are the some of those led it to lose the case at the second instance. [20] . After analysing the rulings of the judgment on the first instance, it means at the intermediate Court of Nyagatare as well as the rulings of the judgment at appeal level in High Court, Rwamagana chamber, the Court finds that in deciding that Gatsibo district lose the case, it was explained in those both Courts that even if the place in litigation is a swamp, it would not be the motive of demolishing and damaging their assets without giving them the equivalence while they were given that place by the competent authorities who gave them the titles that the lands belong to them, in case they repossess it , they must give to them the deserved damages. [21] Basing on article 28(5) of the organic law n° 03/2012/OL of 13/06/2012 mentioned above provides for that a case lost by a party to proceedings in the first and second instances basing on similar grounds shall not be appealed for to the Supreme Court, the Court finds that Gatsibo district lost the case for the first and second instance for the similar grounds in both previous Courts, therefore the appeal submitted by Gatsibo district must be inadmissible because it does not fall into the jurisdiction of the Supreme Court.

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III. DECISION OF THE COURT. [22] It holds that the objection raised by the Counsel for RUZABARANDE Festo and his mates has the merit. [23] It rules that the appeal of Gatsibo district does not admitted; [24] Orders that the Court fees are on the side of public treasury.