KAREMERA SUCCESSORS v. RUZINDANA

# KAREMERA SUCCESSORS v. RUZINDANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-06-06 - Case/document no.: 0069/11/CS - Collection: Supreme Court

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KAREMERA SUCCESSORS v. RUZINDANA [Rwanda SUPREME COURT –– 0069/11/CS (Kayitesi, P.J., Rugabirwa and Mukandamage, J.) June, 06th 2014] Laws relating the civil procedure – The status to be sued – The sale of property of the company executed by the lot of share representing it – The sale executed by the representative of a company cannot be considered as individually, rather she represents’it – In claiming that property, the buyer cannot file a claim against the shareholder because he has no status to be sued, rather the company – The law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, in its article 142 – Facts: RUZINDANA Jéremie has filed a case against KAREMERA Boniface before the Commercial High Court requesting him to honor the contract they signed by giving him the title deeds of two petrol stations belonging to Sociétés Générales des Pétroles (SGP) and title deeds of the houses so that he register them in his own names. But KAREMERA died before the case was decided and his heirs continued it. The Commercial High Court ordered KAREMERA Boniface’s heirs to give RUZINDANA Jeremie those both petrol stations that KAREMERA has sold to him after showing the receipt. KAREMERA Boniface’s heirs appealed in the Supreme Court requesting that RUZINDANA’s case would not have been admitted in the Commercial High Court since He filed the case against KAREMERA individually while he could have filed it against SGP, because he is the owner on those petrol stations, and requested that the decision appealed for has to be removed since it has been decided by the court that has no competence, that the court competent to hearing is Nyarugenge Commercial Court. GT BANK (ex Fina bank) has voluntarilly intervened in this case arguing that the property at issue is its own. The counsel of KAREMERA Boniface’s heirs requests the inadmissibility of RUZINDANA’s claim since he sued him individually. The counsel for RUZINDANA argued that the claim would be admitted since he sued him personally, and has signed the contract in his personal name. Held : 1. For the claim to be admitted requires the plaintiff and the defendant that they must be of quality, in case they don’t their claim is not admitted. Since the property of SGP petrol station is different from that of KAREMERA Boniface individually, though he was the owner of a lot of shares, and he did not sell that property to RUZINDANA Jeremie individually, instead he sold it as the representative of that company. So in its follow up, he could not have sued RUZINDANA Jeremie individually since he has no status to be sued he had. It’s in that instance that his heirs had no status to be sued. Thus the claim couldn’t have been admitted , the judgment appealed for has to be removed. The incident relating to the status has merit. The Judgment rended RCOM 0181/09/HCC is cancelled. Court fees to the respondent. 1

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Statutes and statutory instruments referred to: Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 142. No Cases referred to: Authors Cited « La qualité est une condition d’existence de l’action, exigée tant en demandant qu’en défense. Le défaut de qualité donne lieu à une fin de non-recevoir », par SERGE GUINCHARD, Droit et Pratique de la Procédure Civile, 5 ème Edition, Dalloz, Paris, 2006-2007, p. 22. Judgment I. BRIEF BACKGROUND OF THE CASE [1] Ruzindana Jérémie accused Karemera Boniface in the Commercial High Court asking him to execute the contract signed between them 29/11/2004 when they were at Dar-Es-Salam where he gave to karemera all papers for petrol station located at Base in Rulindo district, northern province and the petrol station located in the plot n°72 in Nyarugenge district and houses in that parcel (annexes) to register them. [2] Karemera Boniface passed away before the case closed then successors made up by Umubyeyi Diane, Muhire Berno Didier, Ntwari Brice and Muhayemariya Lise Thérèse decided to pursue the case (reprise d’instance). The commercial high court rendred a decision and ordered Karemera Boniface successors to give to Ruzindana Jérémie all petrol stations sold on 29/11/2004, upon presentation of bills by Ruzindana Jérémie. [3] Karemera Boniface successors decided to appeal against that court decision in the Supreme Court saying that the case of Ruzindana Jérémie could not be received in the Commercial High Court for the fact that he accused Karemera Boniface individually instead of accusing the whole company (Société Générale des “Pétroles-SGP) the owner of those petrol stations above mentioned, and the fact that the decision taken by this court has to be removed since it has been taken by an incompetent court because the value of the case not exceed rwf20.000.000 and the case is relating to the breach of contract, the competent court to this case is the commercial court of nyarugenge. [4] Guaranty Trust Bank Ltd (ex Fina Bank Ltd) came in the case raising the incident that is the owner of the property said into this case but not either for Ruzindana Jérémie Karemera successors. [5] The public substantial hearing was took place on 28/01/2014, on 04/03/2014, and 20/05/2014, Karemera Boniface successors assisted by Me Nkurunziza François Xavier and Me 2

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Ruzindana Ignace, Ruzindana Jérémie assisted by Me Kazeneza Théophile, and then Guaranty Trust Bank Ltd (ex Fina Bank Ltd) assisted by Me Bimenyimana Eric. II. LEGAL ISSUES OF THE CASE AND ITS ANALYSIS Regarding the objection of lack of status of Karemera Boniface successors to be sued in this judgment. [6] The counsel of Karemera Boniface successors says that the case of Ruzindana Jérémie should not be received in the Commercial High Court because he accused Karemera Boniface as individual to execute the contract signed on 29/11/2004 whenre he gave him all papers relating to the petrol station located at Base and the petrol station located into the parcel n° 72 in nyarugenge district Nyarugenge including all houses (annexes) bult in that parcel, then the court ordered them to give to Ruzindana all those property, ignoring that the property was not relating to Karemera Boniface individually, but fot the company “Société Générale des Pétroles (SGP)“ for which he was a legal representative. [7] He explained that the property is for the company (“Société Générale des Pétroles-SGP)“ then Karemera Boniface sold them to Ruzindana Jérémie naming himself the “Président Administrateur de la Société Générale des Pétroles“, the fact that this company is legally registered it is evident that its property has to be separeated of Karemera Boniface property, the company is still exist where its came to be in the case with Ruzindana Jérémie and the court decision n°RCOM 0098/08/TC/NYGE rendered by the Nyarugenge commerical court on 13/02/2009 and the case n° RCOMA 0040/09/HCC rendered by the commercial high court on 27/10/2011 and losed the case, ordered to pay different damages, for reasons the case of Ruzindana Jérémie should not be received in the previous court since he did a mistake on whom to accuse . [8] The counsel of Ruzindana Jérémie says that his case should be received into the high court because he accused Karemera Boniface individually because is the one who signed on the contract on 29/11/2004 in his own name, and he had right to sell all petrol stations of the company (SGP) above mentionned and he was the owner of those petrol station in the general assembly meeting of the company on 09/09/1992 where they gave to him shares equal to 2.499 (99,9 %) equivalent of rwf 99.960.000, Twagirumwami Yozefu was given one share (1%) equal to 40.000 rwf, this was the fact that Karemera Boniface in the previous court didn’t raised any incident relating to that quality for being accused alone. [9] The counsel of Guaranty Trust Bank Ltd (ex Fina Bank Ltd) says that Karemera Boniface sold to Ruzindana Jérémie a petrol station of SGP above mentionned where Karemera signed on his name the contract on 29/11/2004, and he signed without any general assembly meeting to give him competence. THE VIEW OF THE COURT [10] Article 142 law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative proceedings, states that “any incident that can affect the reception of the case has to be raised by a party to the case or by the court. Those incdents are for public order when have 3

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been raised by the court on its own decision, such as the expiration of appealing date or uncompetence, capacity or interest into the case”. [11] Following on the contents of the above mentionned, the court found that the case cannot be received when the the plaintiff and the defendent should not have the status to sued or to be sued the claim. [12] That is in relation with the thoughts of Serge Guinchard in his book entitled Droit et Pratique de la Procédure Civile1, where he explained so that the claim can be admissible, the plaintiff and the defendent should have the status otherwise ,it’s dismissed. [13] Regarding to this case, the selling act (Acte de vente) of 29/11/2004 contained in the file, shows that Karemera Boniface sold to Ruzindana Jérémie a petrol station located at Base, in nothern province and the petrol station located in the plot n°72 in Nyarugenge district and houses (annexes) saying that he’s the president administrator (Président Administrateur de la Société Générale des Pétroles-SGP). [14] Papers in the file shows that after that contract, Ruzindana Jérémie accused Karemera Boniface individually in the Commercial High court to the n° RCOM 0181/09/HCC asking him to execute the contract and bring back registration papers for petrol stations mentionned above, Karemera Boniface passed away before the case being closed, but successors decided to continue the case (reprise d’instance), the court ordered them to return back all petrol station that sold by Karemera to Ruzindana Jérémie on 29/11/2004, after presenting all bills to confirm that he had paid. [15] The court found that the time Ruzindana Jérémie signed a contract with Karemera Boniface for petrol stations selling above mentionned 29/11/2004, Karemera Boniface was representing the company (Société Générale des Pétroles-SGP) in his position as president administrator (Président Administrateur) as it appear into the 1rst paragraph of the contract relating to the parties in the contract, so even he was a holder of many shares in the company (associé majoritaire), he did not sell that property to Ruzindana Jérémie individually, but he sold that property as representative of the company, which means that Ruzindana sould not have accused only karemera individually since he had no quality (absence de qualité) of being accused individually following on the contents of article 142 of the law above said, confirmed by the doctrine above mentionned, he should have accused the company SGP since it is the one who signed the contract through its representative Karemera Boniface. [16] Basing on the above explainations, the court found that it is in this regard that all successors of Karemera Boniface had no the status to sued in the case (absence de qualité) to have continued the case relating to the contract signed by the company SGP, for that reason the case of Ruzindana Jérémie should not be received by the court, the judgment RCOM 0181/09/HCC appealed in the court has to be cancelled. 1« La qualité est une condition d’existence de l’action, exigée tant en demandant qu’en défense. Le défaut de qualité donne lieu à une fin de non-recevoir », par SERGE GUINCHARD, Droit et Pratique de la Procédure Civile, 5 ème Edition, Dalloz, Paris, 2006-2007, p. 22. 4

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[17] The court found no reason to examine other facts for this appeal given by the successors of Karemera Boniface and the case of Guaranty Trust Bank Ltd. III. THE DECISION OF THE COURT [18] The courtt confirms that incidents raised by Karemera Boniface successors relating to the status has merit; [19] Decides that the judgement RCOM 0181/09/HCC rendered by the Commercial High Court on 02/06/2011 is cancelled; [20] Orders Ruzindana Jérémie to pay court fees equal to 71.150 rwf, including those paid in Commercial High Court to be paid within 8 days be deducted from their assets by public coertion. 5