JET COM Ltd v.TRANSOCEAN SARL

JET COM Ltd v.TRANSOCEAN SARL

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-06-26 - Case/document no.: RCOMA 0059/12/CS - Collection: Supreme Court

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JET COM Ltd v.TRANSOCEAN SARL [Rwanda SUPREME COURT – RCOMA 0059/12/CS – (Mukanyundo, P.J., Kayitsi R. na Mukandamage, J.) 26 Kamena 2015] Commercial procedure – Alteration of the claim – Reducing the litigious amount of money and return it to the agreed amount in the contract is not alteration of the claim. Evidence law – Proof of payment – Invoices bearing the stamp ''PAYÉ'' ''paid'' are not payment receipts since they do not demonstrate the name of the person who put it, the payee and his signature, the date of payment as well as documents accompanying those invoices demonstrating the means of payment as usual evidence in accounting proving the payment – Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 9 (3) and Law N° 15/2004 of 12/06/2004 relating to evidence and it’s production , article 3. Facts: The case originates from the work of declarations and bonds that JETCOM alleges to have executed for TRANSOCEAN SALR’clients It claims that after the works were executed, it demanded the payment of the done work equivalent to 78.281.200 Frw from TRANOCEAN and the latter requested to hold on given that its client had also not yet paid it. JETCOM laments that after it found that there was default to pay, it filed a claim to Commercial High Court demanding the payment of the aforementioned money, moral damages, the

interests from that money, damages for breach of trust, procedural and advocate fees. TRANSOCEAN SARL submitted evidence proving that the payment was done and in the meantime, JETCOM filed a criminal action for forgery. The Court held that the action has no merit. About the case on merit, the Court decided that it has no base to grant the plaintiff’s requests and decides that his claim has no merit. It ordered it to pay 3000 000 Frw for damages of dragging someone into unjustified proceedings, 500 000 Frw for procedural and 500 000 Frw for advocate fees. JETCOM appealed to the Supreme Court requesting the payment of 78.281.200 Frw equivalent to the executed work and its interests being computed on 19% and moral damages. In the course of the hearing however, it recanted an d demanded the payment of 17.545.000 Frw only due to the works it executed for TRANSOCEAN SARL’s clients. TRANSOCEAN SARL responded that JETCOM seeks the payment for the invoices which bear the stamp ``PAYE`` which proves the payment and alter the claim whereby initially it requested 78.281.200 Frw while now it requests 17.545.000 Frw. It added that JETCOM does not even demonstrate the contract which would otherwise would serve as existence of those works. It contended further that he could not come to understand the way such important works could be executed without attached contract. Held: 1. He cannot argue that there is alteration of the claim since the money in contention was reduced to the agreed sum. Likewise, the agreement that there was no contract is not true because none among the parties deny that there was no agreement on the work which was subsequently executed after an agreement on the suitable price.

2. The receipts which bear the stamp PAYÉ are not payment receipts since it does not demonstrate the person who put that stamp, the payee and his signature, the debt of reception as

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well as documents accompanying those invoices to demonstrate the payment means as usual evidence in accounting which serves as payment of the money.

3. No procedural fee must be granted to the loser of the case. Appeal has merit; The debt which must be paid is 11.855.000 Frw; Cross appeal has no merit; Appealed judgement quashed; TRANSOCEAN SARLis ordered to pay JETCOM11.855.000 Frw; It is also ordered to pay court fees. Statutes and statutory instruments referred to: Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 9 (3) Law N° 15/2004 of 12/06/2004 relating to evidence and it’s production , article 3. No cases was referred to Judgment I. BRIEF BACKGROUND OF THE CASE [1] The company, JET COMPANY (JETCOM) doing its activities closer to the customs in dealing with "Clearing and Forwarding" concluded a contract of declaration and bonds with TRANSOCEAN SARL from 2008 – 2008. This contract was supposed to be executed in favor of KOBIL PETROLEUM RWANDA SARL, STRABAG, CHINA ROAD, COMPAGNIE DEGEO and other companies, clients of TRANSOCEAN SARL which was the former contractor but suspended by the Customs administration for the agreed price. [2] At first, JETCOM submitted to the companies the incoice the works of declaration done whose price was equivalent to 78.281.200 Frw counted based on the price set by the customs. The administration of those companies among others PETROLIUM replied that the payment was done to its client TRANSOCEAN SARL. [3] JETCOM forwarded those

invoice to TRANSOCEAN SARL demanding the payment of 78.281.200 Frw and it requeted it to hold on while also waiting for the payment from its clients. After JETCOM noted the default of payment, it filed the claime with the Coomercial High Court requesting the payment of 78.281.200 Frw equivalent to the work done for the clients of TRANSOCEAN SARL, the interests arising from that money on the rate of 19%, damages equivalent to 5.000.000 Frw for breach of the contract, 1.000.000 Frw for procedural fees and 1.500.000 Frw for advocate fees. [4] During the hearing, the representative of TRANSOCEAN SARL submitted a set of evidence proving the payment clearance. However, Jet Company stated that such set includes

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falsefied evidence namely service contract dated September 1, 2008 and the invoices which bear the stamp"PAYE" which, according to TRANSOCEAN, have never existed. In that very proceeding, it filed also a criminal action for forgery alleging that evidence in support of its claim is that no signature on the service contract matches with the signature of the authorities of JETCOM and that no contract has ever been concluded and, in ccontrary, in paying for the rendered service, the tarif of 160.000 Frw that was set after an agreement with Clearing Agences as well as the internal rules of JETCOM served as referrence of payment. [5] In the judgment RCOM 0229/09/HCC dated November 3, 2011 the Court held that the criminal action for forgery filed by JETCOM has no merit. It held further that the contract on identification code 1 and receipts on identification code 40 – 47 were not falsified. It concluded that those documents would be used in the proceeding on the merit of the case. [6] With regard to claim of JETCOM requesting the payment of 78.281.200 Frw, itS interests counted on the rate of 19% and other related damages, JETCOM lamented that it is meaningless to be in the proceeding on merit because the decision on its criminal action looks like it has already determined the outcomes of the case on merit. The Court ruled on the case on March 21, 2012 and in the judgment

RCOM0229/09/HCC decides that the plaintiff did not have any inetntion of pleading the case and hence has no base to grant his requests. It held further that there is no evidence that TRANSOCEAN ought to pay the demanded money as embodied in its claim. It concluded that the claim of JETCOM has no merit and ordered it to pay TRANSOCEAN SARL 3 000 000Frw for dragging it into unjustified proceedings, 500 000 Frw for procedural fees and 500 000 for advocate fees. [7] JETCOM appealed to the Supreme Court on April 19, 2012 submitting many grounds of appeal but during the hearing, its representative caimed that its aim at appeal seeks the payment of 78.281.200 Frw equilvalent to the rendered service and its interests counted on the rate of 19% as well as moral damages. However, during the hearing he recanted that he seeks the payment of 17.545.000 Frw only from TRANOCEAN SARL equivalent to the service to its clients. [8] The case was heard in public on March 31, 2015 and on May 12, 2015. JETCOM was represented by Bugabo Laurent, the councel while TRANOCEN was represented by Nzamwita Toy, the counsel. II. ANALYSIS OF LEGAL ISSUES 1. Whether TRANSOCEAN SARL had paid JETCOM 17.545.000 Frw equivalent to the rendered service [9] Bugabo Laurent states that after TRANSOCEAN SARL receaved the invocices as it had requested, it requested JETCOM to hold on because its client had not paid yet as

well. He added further that even after it continued to default and it pushed it to filing the case with the Commercial High Court seeking the payment of 78.455.200 Frw in accordance with 625 decalrations and bond done which was computed based on tarif fixed by the agreement of Clearing Agences at the customs as well as on the internal rules of JETCOM. He articulated that in its appeal, it requested such amount but TRANOCEAN must pay 17.545.00 frw in accoradance with works it performed for it [TRANSOCEAN] clients because it had been

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suspended by the administration of the Customs to give that service. He explained that such amount is comprised of 11.855.000 Frw equivalent to 8 invoices as found on identification code C 40 till 47, 1.290.000 Frw equivalent to 86 bonds, and 4.400.000 Frw equivalent to 220 declarations done. [10] He continued however stating that TRANSOCEAN SARL had later declared that the real price that JETCOM must refer to in computing the the equivalent of the renderecd service is 20.000 Frw for every transcation, 15000 Frw for evry bond which is the rean why it revised its invoices as found on identification code 2-39 referrence being made on new tarifs, which he revised also upon request by TRANSOCEAN SARL because they were not dated. He made the new invoices based as found from identification code 40-47 equivalent to 11.855.000 Frw which is also found on identification code 2-39. [11] Bugabo, the counsel states further that the judge had got confued about submitted evidence and led him to taking a wrong decision because he failed to deferrentiate invoices and receipts and held that invoices from identification code 2-39 are invoices prepared by JETCOM while he held that invoices from identification code 40-47 are recepts which have been issued which had been sent to TRANSOCEAN SARL proving they payment as they bear stamp "PAYE" while it is not true because was the payment done, he would

be given the payment receipt which is different from confusing invoices with recepts while its is the payer who had stamped, ``PAYE`` paid while no payment was done. [12] He explains that with regard to those invoices as 8 in numbers(identification code 40-47) which bears stampt "PAID" after being received by TRANSOCEAN SARL, it stamped them "PAID" instead of making the payment whithout indicating the name of the payee who stamped on it, his signature and the date of payment. He added that TRANSOCEAN SARL considers them as receipts while they are not and that Ndutiye TRANSOCEAN SARL had made the payment, it must demonstrate the means used in doing it either check or cash-book had the payment been made in cash. Threfore, he concluded, apart from that stamp “PAYE“, there is no any other evidence proving the payment. [13] Tumwizere Liberata, the Managing Director of JETCOM states that evidence that Ndutiye had received invoices is that they are in his possession and does not deny that and that they had never concluded the contract as he lied before the first instance court. He added that any client of TRANSOCEAN SARL who would seek the servce TECOM would have to accept and do the assigned task and get paid after it is also paid. He stated further that in that contract they had further agreed that Ndutiye / TRANSCOCEAN SARL would be paying 10% of the renderec service. [14] Nzamwita

Toy states that he had never heard JETCOM denying to have received the detailed invoice found identification code 2-39 but rather those which which causes problem are the one found on identification code 40-47 since JETCOM requests the related peyment while TRANSOCEAN SARL had paid as demonstrated by the stamp ``PAYE`` which had been imposed by JETCOM after it was paid. [15] He argued further that JETCOM had altered the claim since initially when it file dit, it was claiming the payment of 78.781.200 Frw while before this Court it demands 17.545.000 Frw

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including 11.855.000 Frw arising from the invoices whic are in the case file on identification code 40-47 while those invoices are evidence of the payment of work done by JETCOM for TRANSOCEAN. He added that JETCOM had not demonstrated the contract they concluded cencerning the work whose payment is being demanded through those invoices and it is not p[ossible that the reward for the work of such a kind which the payment is sought can be executed without contract the same as he does not demonstrate the request for quotation between it and TRANSOCEAN. [16] Ndutiye Alphonse states that as Managing Director of TRANSOCEAN SARL and its representative, JETCOM JETCOM used to prapare invoices in his name and pays. Hea added that evidence in support of the payment for those invoices is their absence anywhere in the case file. He declared that he paid Liberata and Kantete and that they used to stamp after after giving money. He concluded that this avidence of the payment and evidence that JETCOM is paid.

THEVIEW OF THE COURT [17] Article 3 of Law N° 15/2004 of 19/7/2004 relating to evidence and its production provides that Each party has the burden of proving the facts it alleges. A judge may nevertheless order any contending party to produce elements of proof they have while article 9 of that Law provides that evidence based on a legal issue or on a fact can be proved by the use of written evidence, testimony, presumption or circumstantial evidence, admission of a party or any other material evidence. [18] With regard to the declaration that JETCOM mght have altered the claim because of the quantum of the debt which was in issue at intitialclaim at the first instance, the Court finds that there is no alteration of the claim because JETCOM filed the claim for the first time requesting the reward of 78.281.200 Frw equivalent to the works that it executed for the clients of TRANSOCEAN SARL while the appellant requested the as reward amount which is under that requested at the first instance. Threfore, the fact that it seeks 17.545.000 Frw as payment, it is because the executed work was valued being computed on the lower price as agreed by both parties as submitted by TRANSOCEAN SARL. With regard to the fact that there was no concluded agreements, there is no party which does contest that there was agreement on the work to be executed on the price of 20 000Frw for every

declaration and 15 000 Frw for every bond. [19] With regard to evudence of the paid debt as submitted by TRANSOCEANSARL, the Court it is only the stamp which only marks ``PAYÉ`` which is stamped on evry incoice without demonstrating the payee and his/her signature, the date of the payment and thye document accompanying such invoices to demonstrate the means of payment like cheques, withdrawal slips in the cash book or the words ''for reception'' that must be identified just near by that stamp ``PAYÉ`` which are are usual in accounting as justification of payment and evidence to show the payee. They (invoices) cannot be considered payment receipts. [20] The Court finds that among the principles of accounting, the stamp ``PAYÉ`` without the signature of the one who puts the stamp or the stamp of the paid institution and the accompanying documents proving the means of payment so that it can be considered as evidence of payment. Therefore, all invoices from identification code 40-47 stamped ``PAYÉ`` that TRANSOCEAN band as receipt of payment cannot be considered as evidence of the payment of

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the money that it owes to JETCOM as the signature and the stump thereon have been put by its employee and its hence obvious that there were invoices that were supposed to be sent to TRANSOCEAN which do not demonstrate the name of the person who stamped them and there is no any other document that are presented as as evidence of receipt of peyment. It is rather a stamp which can be possessed and used by whoever. [21] With regard to the quantum of the money whose payment is being sought, JETCOM in its arguiments demands to be paid 17.545.000 Frw comprised of 11.855.000 Frw for 8 invoices as found on identification code 40-47, 1.290.000 which is equivalent to bonds 86 and na 4.400.000 Frw for 20 declarations. [22] The Court finds that it is only 11.855.000 Frw which can be jutsified by evidence referrence being made to invoices found on identification code from 40-47 as also this amount is highlighted on the prvious paragraph. This the only amount of money that TRANOCEAN must pay JETCOM. With regard to the other money totaling 1.290.000 Frw that JETCOM that JETCOM demands while stating that it is the equivalent of 86 bonds and other amount totaling 4.400.000 Frw for 220 declarations, it does not provides any evidence proving that TRANSOCEAN SARL owes it such amount as debt. [23] Based on laws and explanations above mentioned, the Court finds that the invoices that are stamped

``PAYÉ`` as identifiable on identification code 40-47 cannot be considered as receipts of payment because they are not marked or accompgned by tengible evidence demonstrating that the money that TRANSOCEAN is demanded to pay has been done. Hence, it must pay JETCOM 11.855.000 Frw that it owes JETCOM based on the provisions of article 2 and 9 of of Law nº 21/2012 of 14/06/2012 which provides that Likewise, a party who alleges that he/she has been discharged from an obligation that has been established must prove that the obligation no longer exists. Failure to do so, the other party wins the case.

2. With regard to the cross appeal filed by TRANSOCEAN SARL [24] Nzamwita Toy, counsel for TRANSOCEAN SARL filed cross appealrequesting the advocate fees equivalent to 1.000,000 Frw. [25] Bugabo Laurent, the counsel replied that such advocate fee has no merit since appeal is the right of JETCOM and that it is TRANSOCEAN SARL who trigerred the poceeding as denied paying. [26] The Court finds that no advocate fee must be awarded while TRANSOCEAN SARL whom he is advocate lost the case. III. THE DECISION OF THE COURT [27] Decides that appeal filed by JETCOM demanding the payment has merit; [28] Decides that the debt that must be paid is 11.855.000 Frw; [29] Decides that cross appeal filed by TRANSOCEAN requesting advocate fee has no merit;

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[30] Quashes the judgment RCOM 0229/09/HCC delivered by the Commercial High Court on March 21, 2012. [31] Orders TREAOCEAN SARL to pay JETCOM 11.855.000 Frw; [32] Oreders TRANSOCEAN SARL to pay the court fees.