Kalisa v BPR

# Kalisa v BPR

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-03-14 - Case/document no.: RCOMA 0055/11/CS - Collection: Supreme Court

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KALISA v. BPR [Rwanda SUPREME COURT – 2014 SC – RCOMA 0055/11/SC (Havugiyaremye, P.J., Mukandamage and Kayitesi, J.) 14 March 2014] Commercial Laws – Time for submitting evidences – No party can request that some evidences considered have no legal value when they are inaccordance with law, Law nº 21/2012 of 14th/06/2012 relating to the civil, commercial, labour and administrative procedure, Article 352. Commercial Laws – Contract between parties – Document to be considered when there are two contracts made on the same date – Creditor cannot modify the contract wthout mutual consent – The contract to be considered is the one without modification, law n°45/2011 of 25/11/2011 governing contracts, articla 64. Commercial Laws – Damages, restaurant, transport and procedural expenses – A party who requests damage cannot be granted for them whitout showing relationship between fault and defendant and without evidences which show its income, Law of 30th/07/1888 CivilCode Book III, Article 258. Commercial Laws – Cross appeal – Damage for litigation and advocate fees – When a counterclaim is filing in the hearing, is rejected because it is filed to late – No damages for litigation and advocate fees are given to the applicant while the Court finds that the appeal is accepted, Law nº 21/2012 of 14th/06/2012 relating to the civil, commercial, labour and administrative procedure, article 357 first paragraph. Facts: The appellant has made a loan contract of construction with defendant of 15.000.000 Rwf which should be paid in 24 months. The appellant stated that he should pay them in 48 month in accordance with the contract. After disagreement, the appellant filed a case before the Commercial High Court requesting the annulation of that contract because the defendant has recovered a lot of money not agreed whch led the debtor to be in insolvent. The Court decided that his claim has no merit because it found that there are two different contracts, in one contract it is said that the appellant should pay in 48 months while in the other contract which is showed by the defendant, there is correction made by the pen and is noted that he should pay in 24 months, because he has paid 8 months, which shows that he accepts it and that there is no proof of forced execution by the defendant. The appellant appealed before the Suprime Court stating that there are evidences submitted illegaly and the previous Court based on them and made a judgment. He said again that the Court has decided that there are two different contracts, it gave reason one which contains a fault and while that which does not contain a defect declared it invalid. He requested to be granted for damages but it did not. Held: 1. Submissions of the defendant shall contain explanations on what transpired and the grounds on which it is premised. Such submissions shall be served on court and a copy thereof given to the other party within fourteen (14) days from the date when the defendant was served with the plaint. Therefore the appellant had anough time to analyse the conclusion before hearing on merit based on the minutes of the hearing in file, he should reply on them, the request that some evidences used in the Court be nullified, has no merit.

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2. Contracts made in accordance with the law shall be binding between parties they shall be performed in good faith. Thus the defendant should not delete some of its content without notifying the appellate and make his approval. Therefore is considered the contract submitted by the appellant court because is the one which does not contain the deletion, and that the denfendant has not declared forgery and use false for its inconsistance. But because the defendant didn’t perform the contract he made with the appellant, which led to the non payment the loan, then that contract must be revoked, and the appellant pays the laon by subtracting the payment of 8 months, the interest be removed because the non payment was caused by the defendant. 3. Any act of man that causes damage to another obliges one by whose fault it happened to repair it. The fact that the appellant does not show the relationship between its prejudice caused by the offender for modifying the contract without mutual consent and the fact that his cars were not maintained so as to help him to pay the loan, there is no proofs of that he has two cars that do not work and their income, he cannot be granted for damage he requesting. For other damages relating to transport, restaurant and procedural fees that the appellant requests to the defendant, he cannot be granted for them because he does not provide evidence, and also there are other damages he requested for which he was not granted for in this judgment. 4. A counter claim and claim against a guarantor shall be instituted in writing before the conclusion of the preliminary hearing. The fact that the defendant submitted it before Commercial High Court in the hearing by requesting that the appellant pays him the principal and interests, and was rejected because was filed to late, it cannot even now be accepted and analysed in appeal level. 5. Concerning damage and advocate fees that the defendant is requesting the the appellant because of unnecessary litigation cannot be given for them because the appeal of appellant has merit in part which leads to the change of the previous judgment, therefore there was no vexatious proceedings. The appeal has merit in part. The cross appeal has no merit. The Court fees to the defendant. Statutes and statutory instruments referred to: Law n° 45/2011 of 25th/11/2011 governing contracts, article 64. Law nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure as modified and completed till now, Article 6. Article 352 and 357. Paragraph 1 Law of 30th July 1888, Civil code Book III, Article 258. No case reffered to. Judgment I. BRIEF BACKGROUND OF THE CASE

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[1] BPR made a loan contract for construction of 15.000.000 Rwf with KALISA Dominique, it said that the payment should be paid in 24 months by paying 625.000 Rwf per month, while KALISA said that he should paid them in 48 months by paying 312.500 Rwf per month. [2] After disagreement, KALISA filed a claim before the Commercial High Court, requesting the revocation of that contract because BPR paid itself a lot of money from Kalisa account as not agreed, which led him to default to pay the loan, and led to default of repare of his two cars which should generate income to pay the loan, this generate the loss for which he requests for damage equal to 133.200.000 Rwf, and request that BPR pays him the procedural and advocate fees. [3] The Commercial High Court decided that his claim has no merit because it found that there are two different contracts, in one of the contract provides that KALISA should pay in 48 months (Contract from Kalisa) and in another contract modified with pen it was written that he should pay in 24 months (contract from Bank), he execute the contract which provides the payment in 24 months because he paid 625.000 Rwf during 8 monts, this shows that he accepted them, therefore he cannot be based on the fault from bank for modifying the contract, and that there is no evidence which he shows he was forced by the Bank for paying that money. [4] The Court ordered him to pay BPR 50.000 Rwf as damage for unnecessary litigation and 300.000 Rwf of advocate fees, for the countclaim submitted by BPR requesting that KALISA paid his loan, the Court rejected the claim because it was filed to late during the hearing in merit. [5] KALISA appealed before the Suprime Court saying that that there are evidences submitted illegaly and it refered to them in taking decision. He sait again that the Court confirmed that there are two different contracts, one which contains a defect was considered, give reason to another one which was not contained any defect without any motivation. And he requests to be granted for damages he asked and BPR be obliged to Penalty forcing the execution. [6] BPR says that that appeal has no merit, but rather its counterclaim it filed by requesting KALISA to pay the loan, should be received and analysed. [7] The hearing held in public on 11th February 2014, KALISA Dominique represented by counsel HAKIZIMANA Théogène, BPR represented by counsel RWAKAYIJA John. II. LEGAL ISSUES AND THEIR ANALYSIS. a. Whether or not the evidence analysed before Commercial High Court were illegally submitted. [8] HAKIZIMANA, counsel for KALISA says there ere evidences composed of the certificate of joint guarantee on loan and copy of his bank booklet showing that he paid much money, given by BPR on the hearing in merit while it was explaining its countclaim instead of being submitted in preliminary hearing as provided by article 352 of the Law nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure. He Says that

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KALISA request to reply on them but the Court refused, after he loosed the case as it shown in paragraph 6 and 7 of the judgement, and he requests that those evidences be invalid and remains only the contract as evidence in hearing. [9] RWAKAYIJA, counsel for BPR says what is said by his the adversaly are not proved, that in the previous Court KALISA accept to plead while he has rights to adjourn the case in order to analyse those evidences. [10] He says again that before that Court, KALISA was asked the reason he paid much money (625.000 Rwf) basing on the contract provding the payment within 24 months, by knowing that he has the contract providing that he will pay within 48months, he replied that Bank forced him to pay without providing explainations. Thus, he finds that certificate of of joint guarantee and the plug of payment are the evidences of payment, and that those evidences have been submitted before the hearing, that he has the possibility of defense. The view of the Court [11] Article 352 of the Law nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure provides that “Submissions of the defendant shall contain explanations on what transpired and the grounds on which it is premised. Such submissions shall be served on court and a copy thereof given to the other party within fourteen (14) days from the date when the defendant was served with the plaint. A copy of submissions for the plaintiff shall be served on him/her by the defendant where possible, the court registrar or the court bailiff”. [12] The statement of hearing in file show that the submissions of BPR as defendant were given in the hearing of 17th June 2010, the audience was adjurned on 9th September 2010, and was again adjurned on 13th January 2011, the BPR was requested to give his proofs including plug of loan, and the hearing was adjurned on 31st March 2011 which is the day the hearing on merit was made. [13] The Court finds that KALISA got enought time to analyse the conclusion before the hearing on merit as provided by the law mentioned above, he has the possibility of defense, thus his request to declare invalid some evidences because they were submitted illegally, is baseless because it is not provided by that article. a. To know the contract which shall be binding between the parties. [14] MHAKIZIMANA, counsel for KALISA says that the Court decided that there are two different contract, one which is possessed by BPR containing a fault and other which is possessed by KALISA without fault, and that the second was avoided when it provided that KALISA should pay in 48 units by paying 312.500 Rwf per month. [15] He explains that KALISA did not pay himself 625.000 Rwf, because his salary and other income from his business of his cars were deposed to his account, and the BPR seized them, that the fact that modification made by bank employee in his contract where it is written 48 months, he wrote 24 months, it was for marching them with what is on plug of debt, that after 8 month he

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found that he was illegally required to pay because the bank notified to him he has arrears in payment while he expected to have lot of money on his bank account, he requested it to make correction and it did not respond him. [16] He continued to say that he does not understand the reason why the bank has modified the contract for drafting new contract without his consent, and the Court did not explain how those all contracts should be executed, and he has filed a case for its revocation but Court refuses. [17] RWAKAYIJA, counsel for BPR says that bank has withdrawn on KALISA account the shares of 625.000 Rwf for each month during 8 monts without contestation, when he failded to pay he arise the deceit that he should pay within 48 months basing on his forging contract. He says that in previous Court KALISA pleaded saying that they were made under duress while he is currently saying that it was not. [18] Concerning the contract, counsel RWAKAYIJA says that KALISA cannot pretend that there was a the fault, because it was corrected in his presence, that he paid the loan in the partition as to finish within 24 months as was provided by in the insurance contract he requested. [19] The fact that the Court found that there are faults committed by BPR but didnot decide to that, counsel RWAKAYIJA says that it is baseless because the Court has not an obligation of analysing how the contract are drafted and how are corrected, but it should analyse if the BPR did not perform the contract. The view of the Court [20] The article 64 of the Law nº 45/2011 of 25th November 2011 governing contract, provides that Contracts made in accordance with the law shall be binding between parties. They may only be revoked at the consent of the parties they shall be performed in good faith. [21] As found by the Commercial Hight Court and agreed by the parties, on 08th July 2008 it was made the contract between BPR and KALISA agreed that loan granted of 15.000.000 Rwf should be pad in 48 partitions by paying 312.500 Rwf per month from 15th October 2008 to 15th October 2012 (article 4), but in contract where is written of 48 partitions, the bank deleted it and wrote 24 partitions, for that KALISA was forced to pay the partition of 625.000 Rwf during 8 months, and arise conflct because he was notified having arrears in payment. [22] The Court finds that that contract binding between parties and they shall be performed in good faith by BPR, thus it shall not modify some of its ponts without notifying to KALISA and makes its consent. The fact that the counsel for the bank is saying that KALISA knows that fault has no merit because he paid much money during 8 months without deposit himself the money on bank account, but it is the bank which withdrawn the partition from his account each month on his account, there is a possibility to know it too late. [23] The Court finds that the contract that KALISA submitted to Court, is one which must be considered because it has not modified, and the BPR has not claimed it is forgered for it to be inconsistent.

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[24] But the Court finds that BPR has not perfomed the contract it made with KALISA, which leads him to non payment of the loan he was granted for, therefore that contract must be revoked, KALISA shall pay the loan by subtracting the money he paid during 8 months, interest shall be removed because he failed to pay as to get them because of the fault from bank, He shall pay the following amount: 15.000.000 Rwf – (625.000 Rwf x 8 monts) = 10.000.000 Rwf. [25] Based on what abovementioned, the Court finds that the appel of KALISA has merit, the appellate judgement shall be modified, it shall be analysed the damages not granted for. b. The basis of damages requested by KALISA [26] HAKIZIMANA, counsel for KALISA says that he filed a claim for damages of loss from BPR of 133.200.000 Rwf during 8 month, because of impossibility to repare his cars which helped him to pay the loan and the the bank withdrawn all his money on his account, one car generated income of 169.000 Rwf per day, and another one generated income of 144.000 Rwf. He requests again that it gives him 90.000 Rwf of transport, 140.000 Rwf of restaurant, and 150.000 Rwf of procedural fees, that BPR be forced to penalty for execution of 4% per day when it shall fail to pay them to him. [27] RWAKAYIJA, counsel for BPR says there is no loss that the bank occurs to KALISA, but it is himself who caused to it damage by taking a loan and failed to pay. For the other damages of transport and restaurant he is requesting, he says that he cannot be given because he does not provide any evidence, for advocate fees he requests that the Court shall appreciate when he will win the case, that BPR shall not forced to pay anything. The view of the Court [28] The article 258 of the Law of 30th July 1888 of Civil Code Bookk III, provides that any act of a person which cause prejudice to other oblige the default to pay. [29] The Court finds that KALISA does not show the relationship between fault from BPR of modifying the contract without his consent and the default of repation of his car in order to help him in payment of the loan, there is no evidences he provides that he has two cars which do not function and their income, therefore he cannot be granted for the damages he is requesting for. [30] Concerning transport, reataurant and advocate fees that KALISA is requesting BPR, the Court finds that he cannot be granted for because of lack evidences, and that there are other damages he claimed which he looses in this case. c.The Cross appeal of BPR [31] RWAKAYIJA, counsel for BPR states that he made a cross fom the appeal of KALISA requesting the payment of loan equal to 15.000.000 Rwf added to the interests on late payment by substracting the amount paid, with damages of 1.000.000 Rwf for unnecessary litigation and 500.000 Rwf of advocate fees on appeal level added to 300.000 Frw given in prevous Court.

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[32] HAKIZIMANA, counsel for KALISA says that the counterclaim requesting the payment of principal with its interest was ruled by the Court and rejected it because it was filed to late. [33] Concerning the damages HAKIZIMANA says that BPR would be granted for them when the claim of KALISA requesting the damages is considered, otherwise the Court shall maintain the damages determined by the previous Court because are anought. The view of the Court [34] The Article 357 first paragraph of the Law nº 21/2012 of 14th June 2012 relating to the civil, commercial, labour and administrative procedure provides that “A counter claim and claim against a guarantor shall be instituted in writing before the conclusion of the preliminary hearing”. [35] The Court finds the countclaim of BPR requesting KALISA to pay the loan and damages was filed he has for it was filed before the Commercial High Court in the hearing, and was rejected because of it was filed to late, then it cannot be received and analysed in appeal. [36] Concerning the damages of 1.000.000 Rwf that BPR is requesting KALISA for unnecessary litigation and 500.000 Rwf of advocate fees at appeal level that adds to 300.000 Rwf given in prevous Court, the Court finds that all that amount, as the damages and advocate fees as were given by the previous Court, it cannot be granted for them because the appeal of KALISA has merit in part this leads to the change of appealed of the case, then therefore there was no vexatious proceedings. III. THE COURT DECISIONS [37] Decides that appeal of KALISA Dominique has merit in part. [38] Decides that the cross appeal of BPR has no mert. [39] Orders KALISA Dominique to pay BPR 10.000.000 Rwf as loan. [40] Orders BPR to pay amount of 31.900 Rwf as Court fees within eight days, in case of default, they will be drawn from its properties by the public force.