KIREHE DISTRICT v SAHAM ASSURANCE RWANDA Ltd, currently known as SANLAM ASSURANCES GÉNÉRALES Plc et Al.

# KIREHE DISTRICT v SAHAM ASSURANCE RWANDA Ltd, currently known as SANLAM ASSURANCES GÉNÉRALES Plc et Al.

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2021-12-31 - Case/document no.: RS/INJUST/RC 00002/2021/SC - Collection: Supreme Court

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KIREHE DISTRICT v SAHAM ASSURANCE RWANDA Ltd, currently known as SANLAM ASSURANCES GÉNÉRALES Plc ET Al. [Rwanda Supreme Court-RS/INJUST/RC 00002/2021/SC (Nyirinkwaya, P.J., Karimunda and Hitiyaremye J.) 31 December 2021] Civil procedure – Forced intervention into a case at the appeal level– A party whose first forced intervention into the case occurs at the appeal level, has a right to at least one appeal remedy – While examining the second appeal, the appellate court cannot claim its lack of jurisdiction on the matter yet the case involves a party whose first intervention into the case occurred at the appeal level. The law governing the judgment review on grounds of injustice –A party who files an incidental appeal in the judgment under review on grounds of injustice – A party who did not apply for the judgment review on grounds of injustice cannot make a claim in the course of the hearing of the judgment under review on grounds of injustice. Overruled precedent – The law governing contracts – Insurance contracts – Liability –Insured person who knowingly and deliberately does not fulfill his/her obligations provided under the insurance contract is not protected by such contract. This precedent was overruled by the one that was set in the case RS/INJUST/RC 00002/2021/SC, Sanlam AG Plc v Bizimana rendered by the Supreme Court on 28/03/2025.[Reported in RLR V.2-2025]. Stating that or the insurer to be exempted from paying damages based on a statutory or contractual provision prohibiting insuring the intentional fault, he/she must provide evidence that the insured committed the fault with the intent to cause harm (faute intentionnelle). Facts: The case started when Mbonyinshuti and others sued the former Saham Assurance Rwanda Ltd (currently known as Sanlam Assurances Générales Plc) before the Intermediate Court of Ngoma, claiming for damages from a certain road accident that involved a Fuso brand lorry that killed Sinzabakwira, one of the 52 passengers that the vehicle had on board in the rear part. Sanlam Assurances Génénerales Plc argued that it has no responsibility since the vehicle that killed Sinzabakwira had been requisitioned by Kirehe District for use, and it carried more passengers than the insured number; and besides, its driver did not have the required driving license. Nonetheless, the Court held that Sanlam Assurance Générales Plc should pay to the plaintiffs the moral damages because its statements do not discharge it from paying to the persons aggrieved by the vehicle as it is not able to prove that by the time Kirehe District requisitioned the concerned vehicle, the insurance agreement had already been rescinded. Sanlam Assurances Générales Plc appealed against the ruling before the High Court and requested for the forced intervention of Gatashya’s heirs and Kirehe District in the case for being held liable for the payment of the charged accident related damages. The civil parties argued that the insurer’s appeal is unfounded. However, the Court held that the insurer’s request for forced intervention of Gatashya’s heirs and Kirehe District in the case was founded. The Court held that Gatashya and Kirehe District breached the insurance policy when they decided to pack 52 passengers into the lorry; and the vehicle was driven by a person without driving license. The Court ordered that the

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damages charged to Sanlam Assurances Générales in the appealed judgment should be equally paid by Gatashya’s heirs and Kirehe District. Kirehe District appealed against the above ruling before the Court of Appeal and stated that it was deprived of the opportunity of attending the pre-trial conference and it was forced to intervene for the first time before the High Court and the Court disregarded the content of insurance contract that Sanlam Assurances Générales Plc concluded with the insured person. The Court of Appeal found that the damages awarded in the appealed judgment do not equate the sum provided under the law and declared the appeal inadmissible as it does not fall under its jurisdiction. Kirehe District petitioned the President of the Supreme Court and prayed him to have the case rendered by the Court of Appeal reviewed on grounds of injustice. The President of the Supreme Court examined the application and sent the case to the Supreme Court’s registry for a subsequent review. Kirehe District argued that any party that is forced to intervene in a case at the appeal level and thereof charged for some dues, should have a right for one remedial appeal; more so that the District had never been a party before the Intermediate Court. The Court made an instant decision and held that a party has a right to one appeal against any unsatisfying ruling that resulted from the forced intervention, and the Supreme Court moved that the Court of Appeal was supposed to admit the District’s appeal. Sanlam Assurances Générales Plc raised an issue of whether the civil parties have any request for the case under review while they have never applied for injustice-related review of the judgment. The civil parties argued that a mere fact that they have never applied for the review of judgment on grounds of injustice does not deprive them of the right to plead for their appeal filed to the Court of Appeal, its examination was not conducted due to the claim inadmissibility. They argued that, as the judgment is adjudicated anew, it is necessary to examine all issues that were raised and each party can prove the challenged issue. The Court found that it is only Kirehe District that requested for the injustice-related review of the Court of Appeal’s ruling; and held that the civil parties’ cross-appeals that were aborted by the inadmissibility of the principal appeal before the Court of Appeal and for which no party has ever applied for an injustice-related review, this indicates that they had any interests in such appeal, and the Court moved that for the purpose of the case under review, the civil parties should not bring back their previous cross-appeal they filed in the Court of Appeal. With regard to the determination of the party liable for damages arising from the vehicle accident indicated in this case, the legal counsel of Kirehe District argued that the High Court had no legal grounds for charging the District for damages without first highlighting the District’s liability. For the civil parties, they argued that the insurance legislation that governs motorized vehicles provides that the insurer covers any accident, regardless of its causes, with a reserved right of incurring the loss to the answerable person. The legal counsel stated that Sanlam Assurances Générales Plc should pay the damages related to the accident . The legal counsel of Sanlam Assurances Générales Plc submitted that the vehicle that got involved into the accident is normally a vehicle for transporting goods, and a mere fact that it got into an accident with 52 passengers on board discharges the insurer since the insured person did not abide by the concluded insurance policy. The Court held that it is only Gatashya’s heirs (the owner of the vehicle) who shall pay for damages since it is him who chose to deliberately breach the content of the insurance agreement. Therefore, the insurance policy cannot cover neither his own loss nor any third-party claims, since he decided

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to load many persons in a vehicle meant for transporting goods and the vehicle was driven by a person without driving license. Held: 1. A party that has not applied for injustice-related case review cannot take advantage of the reviewing of the case and make any requests. Therefore, any cross-appeal has not been heard due to the inadmissibility of the principal appeal, and for which the appellant has not sought injustice- related case review, such a cross-appeal cannot be examined along another party’s request for case review; because such is considered as if the party is satisfied by the ruling. 2. A party whose first forced intervention into the case occurs at the appeal level, has a right to at least one appeal remedy. Therefore, while examining the second appeal, the appellate court cannot claim its lack of jurisdiction on the matter yet the case involves a party whose first intervention into the case occurred at the appeal level. 3. Insured person who does not knowingly and deliberately fulfill his/her obligations provided under the insurance contract is not protected by such contract. Therefore, when a vehicle driven by a person without specific driving license gets involved into an accident, with a number of passengers on board far exceeding the authorized number in a vehicle normally used for transporting the goods, the owner of the vehicle is accordingly held liable. The appeal that was lodged in the Court of Appeal should be admitted. Statutes referred to: Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts, article 63; Law n0 45/2011 of 25/11/2011 governing contracts, articles 64 and 113; The Presidential Order n0 85/01 of 02/09/2002 regulating general traffic police and road traffic, article 66; The Decree-law n0 20/75 of 20/06/1975 regulating insurance, article 11; General regulations for the insurance coverage for motorised vehicles on road as established by CORAR S.A, which later merged with SORAS AG Ltd on 29/06/2010, see articles 22, 23, 24 Cases referred to: Case RS/INJUST/RAD 00001/2020/SC with AYALA CO Ltd v. APROETEC ASBL and EPTC Ltd rendered by the Supreme Court on 16/10/2020 Case RS/INJUST/RCOM 00007/2020/SC with Whitefield Investment Company Ltd v. Thomas et Piron Grands Lacs rendered by the Supreme Court on 24/09/2021; The interim court decision for case RS/INJUST/RC 00008/2020/SC with Kamugwiza Phoebe v. Sakina Hashim and others; Case RCAA 00045/2016 with Mukaruhanga Alexia v. Nyirahabimana Emertha and Kold Hansen Jesper rendered by the Supreme Court on 24/05/2019; Case RS/INJUST/RC 00007/2020/SC with Twagirayezu Alice and others v. Twagirayezu Albert and other rendered by the Supreme Court on 10/12/2021; The case with City of Johnstown v. Bankers Standards Insurance Co, 8777F 2d at 1150 (2ns Cir. 1989)

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Doctrines referred to: Yvonne Lambert-Faivre et Laurent Leveneur, Droit des assurances, Paris, Dalloz, 2005, p. 201; p. 292 Barry Zelma, Insurance Law, Erlanger, The National Underwriter Company, 2015, p. 71. Judgment BACKGROUND OF THE CASE

This case started from the Intermediate Court of Ngoma, Hatunguramye Prosper representing his son Tuyishimire Charles ( still a minor) together with Mbonyinshuti Jean Damascène and Ndagijimana Eugène sued Saham Assurance Rwanda Ltd ( later changed to be Sanlam Assurances Générales Plc,) whereby the claimants requested to the Insurance Company to pay to them some damages emanating from an accident that occurred on 14/11/2014 when a vehicle Mitsubishi Fuso with plate RAA 080 W belonging to Gatashya Ezra. The accident claimed the life of Sinzabakwira Prosper, one of the 52 passengers on board. Sanlam Assurances Générales Plc declined any civil liability and argued that the car that claimed the life of Sinzabakwira Prosper had been requisitioned by the Kirehe District for transporting people, and it carried more passengers than the authorised number, and it was driven by unlicensed driver, since the latter was only qualified for riding motorcycles. Sanlam Assurances Générales PLc requested for damages over being dragged into an unnecessary lawsuit, and for the refund of the counsel fee.

In the judgment RC 00238/2018/TGI/NGOMA rendered by the Intermediate Court of Ngoma on 11/10/2018, the Court found that the statements of Sanlam Assurances Générales Plc that the concerned car had been requisitioned by Kirehe District and transported more passengers than the authorised number and was driven by a driver without a related driving license, do not discharge it from the obligation of paying the persons harmed by the vehicle as it does not prove that by the time Kirehe District requisitioned the car, the insurance contract with the insured had already been rescinded. The Court also found that the car was still in the hands of its owner and it was driven by the owner’s employee. The Court held that the claim filed by Hatunguramye Prosper representing his son Tuyishimire Charles, and Mbonyinshuti Jean Damascène together with Ndagijimana Eugène has merits in parts, and it ordered to Sanlam Assurances Générales Plc to to pay to each claimant 540,000 Frw for moral damages, and the total is 1,620,000 Frw, and it also ordered to the Insurer to pay to them 500,000 Frw for court fee.

Sanlam Assurances Générales Plc appealed against the above ruling before the High Court, Chamber of Rwamagana and it requested for the forced intervention of the heirs of Gatashya Ezra and Kirehe District into the case for being held liable the charged damages for their faults as the vehicle was driven by a driver without driving license, it transported the passengers that far exceeded the insured number in the rear part meant for carrying the goods. He also explained that the previous court made an incorrect interpretation of the car’s insurance agreement, and a wrong analysis of accident-related insurance coverage legislation. The civil parties argued that the appeal lodged by Sanlam Assurances Générales Plc is ungrounded, it prayed the Court to sustain the appealed ruling.

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The High Court, Chamber of Rwamagana first held that the forced intervention of the heirs of Gatashya Ezra and Kirehe District into this case was founded, and in the judgment RCA 00078/2018/HC/RWG rendered on 17/06/2019, the Court found that Gatashya Ezra and Kirehe District breached the insurance contract when they decided to carry 52 passengers into the vehicle rear part, they allowed a driver without required license to drive the vehicle; Sanlam Assurances Générales Plc is not liable for such fact; therefore, its appeal is grounded. Basing on the articles 258 and 260 of Civil Code book III, the Court held that the damages charged to Sanlam Assurances Générales in the appealed judgment should be equally paid by Gatashya Ezra’s heirs and Kirehe District, it ordered to Hatunguramye Prosper, Mbonyinshuti Jean Damascène and Ndagijimana Eugene to jointly pay to Sanlam Assurances Générales Plc 700,000 Frw for counsel fee and procedural fee.

Kirehe District lodged appeal before the Court of Appeal by stating that it was deprived of the opportunity of attending the pre-trial conference and it was forced to intervene into the case for the first time before the High Court, Chamber of Rwamagana and the Court disregarded the provisions of the insurance contract that Sanlam Assurances Générales Plc concluded with the insured person.

In the judgment RCAA 00025/2019/CA rendered on 24/07/2020, the Court of Appeal found that the charged damages were less than 75,000,000 Frw provided under the article 52 of the Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts, and Kirehe District provided no any other legal ground that would justify the court’s jurisdiction for the matter. The Court declared its incompetence for the matter and it ordered to Kirehe District to pay to Sunlam Assurances Générales Plc 500,000 Frw for the counsel fee and pay to the heirs of Gatashya Ezra, represented by Gatashya’s surviving spouse Nyiramvuyekure Athanasie, 500, 000 Frw for counsel fee and procedural fee.

Kirehe District petitioned the President of the Supreme Court, seeking the review of the judgment RCAA00025/2019/CA rendered by the Court of Appeal on 24/07/2020 on grounds of injustice. The President of the Supreme Court examined the application and issued the decision n0 168/CJ/2021 of 24/05/2021, and sent the case to the Registry of the Supreme for a subsequent review.

In its submissions, Kirehe District argued that the article 116 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure provides that a party forced to intervene into a case and charged for some dues at the appeal level has a right to at least one appeal remedy. The District argued that that provision alone is clear and enough self- explanatory that the Court of Appeal should not reject its appeal on grounds of the litigation monetary value, since the appeal’s monetary value had nothing to do with Kirehe District, more so that the District had never been a party before the Intermediate Court of Ngoma. Kirehe District prayed the Court for the annulment of the Court of Appeal’s ruling for allowing it to prove the injustice it underwent from the High Court, Chamber of Rwamagana, which ordered to it to pay damages for the non-observance of the insurance contract while such contract is not binding to it.

Ndagijimana Eugène, Tuyishimire Charles and Mbonyinshuti Jean Damascène argued that the Court of Appeal erred by not admitting the appeal of Kirehe District, they prayed the Court to

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rectify the error, but for the merit of the case, the Court should order to Sanlam Assurances Générales Plc to pay the damages, as they proved it before the previous courts.

The hearing was conducted in public on 17/11/2021, Kirehe District was represented by Counsel Kayitesi Petronille, and Sanlam Assurances Générales represented by Counsel Nduwamungu Jean Vianney, while Gatashya Ezra’s heirs represented by Nyiramvuyekure Athanasie, Gatasshya’ surving spouse, assisted by Counsel Habakurama François Xavier; whereas Ndagijimana Eugène, Tuyishimire Charles and Mbonyinshuti Jean Damascène got represented by Counsel Banguwiha Vianney.

The Court first examined whether the Court of Appeal erred when it decided that, even if Kirehe District was forced to intervene at the appeal instance, the Court of Appeal should not admit its appeal with reference to the value of the subject-matter.

Having heard the statements of all the involved parties about this issue, they all concurred that the appeal of Kirehe District should be admitted since it was its first appeal, the Court decided on the bench with reference to the paragraph two of article 116 of the Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, and the positions it set in various judgments including the case with Whitfield Investment Company Ltd v. Thomas et Piron Grands Lacs and the case with AYALA Co Ltd v. APROETEC ASBL and EPTC Ltd1, it found that filing the appeal only once constitutes a right that the Legislator reserved for a party who is dissatisfied by the ruling on the case in which it was forced to intervene; it held that the appeal lodged by Kirehe District should be admitted as it was the first time it filed the appeal; it held that the ruling by the Court of Appeal is hereby overturned, and the grounds of appeal filed before the Court has to be examined.

Sanlam Assurance Générales Plc raised an issue of whether the civil parties should be allowed to make any requests for this case yet they have never applied for the judgment review on grounds of injustice. Such issue was firstly examined before examining the issue related to the determination of the party liable for the payment of damages resulting from the road accident caused by the car with plate RAA 089A. II. ANALYSIS OF THE LEGAL ISSSUES OF THE CASE 1. Determine whether a party who has never applied for the judgment review on grounds of injustice can make an incidental appeal to make some claims on the issues related to him/her

Counsel Nduwamungu Jean Vianney representing Sanlam Assurances Générales Plc submits that any party who has never applied for the judgment review on grounds of injustice can only be heard as informant without making any claim, he notes that the Gatashya Ezra’s heirs should so be considered, even before the High Court, Chamber of Rwamagana, they did not lodge the appeal.

1 See case N0 RS/INJUST/RAD 00001/2020/SC rendered by the Supreme Court on 16/10/2020 and case N0 RS/INJUST/RCOM 00007/2020/SC rendered by the Supreme Court on 24/09/2021.

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Counsel Kayitesi Petronille representing Kirehe District submits that any litigant who is not satisfied by the judicial final decision must apply for the judgment review on grounds of injustice; and she argues that since the heirs of Gatashya Ezra, Ndagijimana Eugène, Tuyishimire Charles and Mbonyinshuti Jean Damascène have not so done, this means that they were satisfied with the court’s final decision. However, she states that there is nothing that forbids possible changes on the side of the party that does not apply for the judgment review.

Counsel Banguwiha Vianney assisting Ndagijimana Eugène, Tuyishimire Charles and Mbonyinshuti Jean Damascène, avers that when the President of the Supreme Court orders for the review of a case for grounds of injustice, nothing forbids the court for examining any grievances from a party; otherwise, the court examines the issues from one party; therefore, the judgment review 0n grounds of injustice should not only be limited to the applicant.

Counsel Habakurama François Xavier, assisting Nyiramvuyekure Athanasie, the representative of Gatashya Ezra’s heirs, submits that, even if they did not apply for the judgment review on grounds of injustice, the legislator’s intention in the article 63 of the Law n0 30/2018 on the jurisdiction of courts, was for the reopening of the hearing in the presence of all parties; therefore, the parties do not appear to stand only before the Court. He submits that though it is Kirehe District that has applied for the judgment review on grounds of injustice, Gatashya Ezra’s heirs had as well cross-appealed, and their right of appeal cannot simply be quashed by a mere fact that they have not applied for the case review; yet their cross-appeal has been aborted by the inadmissibility of the principal appeal due to the court’s lack of jurisdiction, and that is why, when the hearing on the merit of the case reopens, all the involved issues must be examined, and each party should have opportunity to point out the issue for which he/she is not satisfied. DETEMINATION OF THE COURT

Article 63 of the Law n0 30 /2018 of 02/06/2018 determining the jurisdiction of courts provides that “When the Supreme Court or any other court designated by the President of the Supreme Court receives an application for review of a judgement on grounds of being vitiated by injustice, it examines the merits of the case anew and in the presence of all parties”.

With regard to the “new examination” that is underscored under article 63 of the Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts, the Supreme Court found that such afresh examination has been explained along different cases rendered by this Court, including the case with Kamugwiza Phoebe v. Sakina Hashim and others2. This Court found that the new examination of the case should not mean disregarding other provisions of the same Law that require any dissatisfied party to apply for the judgment review on grounds of injustice, with a focus on grounds of the application, and the competent authority that approves the application .The Court explained that the paragraph one of the article 56 and the article 58 of the same Law highlights the delay limits for the application for judgment review on grounds of injustice and they also indicate about the authority that approves the application. It is therefore clear that any litigating party that did not go through such procedure cannot take advantage of another party’s application and make any requests for the examination of his/ her own dissatisfactions.

2 See the interlocutory judgement RS/INJUST/RC 00008/2020/SC rendered on 29/10/2021.

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With regard to this case, the Court finds that it is only Kirehe District that applied for the review on grounds of injustice of the case RCAA 00025/2019/CA rendered by the Court of Appeal on 24/07/2020. Therefore, the existence of some other cross-appeals that were not examined by the Court of Appeal owing to inadmissibility of the principal appeal due the court’s lack of jurisdiction, and for which the appellants never bothered to challenge by applying for the judgment review on grounds of injustice, it is clear that they no longer had an interest into their cross-appeal; therefore, they cannot bring back the issues of the previous cross-appeal for this particular case review. 2. Determination of the party liable for the damages resulting from the accident caused by the car with plate RAA 089 W

Counsel Kayitesi Petronille, representing Kirehe District states that the District has not transported any passengers in Mitsubishi Fuso RAA 089 W, arguing that even the car’s driver was not the District’s employee; Counsel Kayitesi argues that it is by Gatashya’s personal initiative that his neighbors got on board of his car as they went to welcome the President of the Republic like any other residents. The Counsel submits that there is no reason to charge to the District the damages resulting from the accident that claimed the life of Sinzabakwira Prosper. She avers that it is Sanlam Assurances Générales Plc that bestows the liability to Kirehe District for the sake of discharging itself from the payment of the charged damages at the first instance, it disregarded the fact that it had already paid the parents and one of the siblings of Sinzabakwira Prosper killed in the accident.

She avers that the High Court, Chamber of Rwamagana, had no single ground for charging Kirehe District with the civil damages without indicating the faults it committed, in case the faults were committed, the civil parties should point out them and up to date they do not indicate its role in the accident caused by the Fuso brand car with plate RAA 089 W. She explains that the injured persons were given cows as they were traumatized, Gatashya Ezra was given 9,000, 000 Frw as he had requested the assistance, the fact that the District granted such assistance does not mean that it recognized the faults or such assistance can be always granted, rather it is due to the fact that it was necessary to support its residents who had the road accident when they went to participate in the event organized by the District. She therefore requests the Court to hold that Kirehe Distirct is not bound by the insurance contract and decide that the charged damages are nullified.

Counsel Banguwiha Jean Vianney assisting Ndagijimana Eugène, Mbonyinshuti Jean Damascène and Tuyishimire Charles, states that the article 22 of the General Regulations for Insurance of Motorized Vehicles provides that any accident, regardless of its causes, must be covered by the Insurer, and the latter initiate proceedings against the person who caused the accident. He argues that it is Sanlam Assurances Générales Plc that must pay the damages just like they have been paying for similar cases, and he prayed the Court to order to Sanlam Assurances Générales Plc to pay 540, 000 Frw granted to each sibling of the defunct.

Counsel Habakurama François Xavier assisting Nyiramvuyekure Athanasie, the representative of the heirs of Gatashya Ezra, submits that Bamporiki who was driving the car had no driving license, it is Kirehe District that had hired him for driving the car, and the District should pay him for the work. He states that Kirehe District used the vehicle meant for transporting the goods for increasing the residents’ participation into the event it organized, he put the persons in

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the part used for the goods instead of using passengers’ vehicles, the District paid the fuel for all the involved vehicles at Nyakarambi petroleum station; when the accident occurred, its cars intervened and, on basis of the estimated cost provided by the garage to Gatashya Ezra, it paid to him 9,000,000 Frw; with reference to the articles 104 and 108 of the law governing evidence and its production, Sanlam Assurrances Générales must pay the charged damages without any difficulty, and then initiate proceedings from Kirehe District.

Counsel Nduwamungu Vianney representing Sanlam Assurances Générales Plc states that at the first instance, the Court did not well understand how the insurance contract is interpreted, the vehicle which caused the accident was meant for transporting the goods, the fact that it caused the vehicle while it transported the passengers discharges the insurer from its obligation because the insured did not respect the contract. He explains that such error was corrected by the High Court which held that the liability goes to both the owner of the car and Kirehe District as they agreed to transport the passengers into the vehicle used to carry the goods. He adds that up to now, Gatashya Ezra’s heirs did not prove that Gatashya Ezra accepted to hand over his vehicle under pressure. Concerning other cases lost by Sanlam Assurances Générales which paid, he argues that it is not due to the fact that Sanlam Assurances Générales was convinced by the rulings of the Court in those cases, it was rather due to the fact that the time limit to lodge appeal was elapsed. He concludes by stating that in case the Court finds it otherwise and holds that Sanlam Assurances Générales Plc is liable for the civil damages, the Court shall set a position according to which the drivers would carry more passengers than the authorized number or understand that the vehicles are licensed to be used for the uninsured activities. DETERMINATION OF THE COURT

Article 64 of the Law n0 46/2011 of 25/11/2011 governing contracts 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 or for reasons based on law” while the paragraph one of the article 113 of the same Law stipulates that “contracts shall have effect only on contracting parties. They shall not cause any prejudice to a third party and shall only benefit to him/her in case of provisions in favor of a third party”

Paragraph 4 of article 66 of the Presidential order n0 85/01/ of 02/09/2002 regulating general traffic police and road traffic provides that “it is forbidden for the driver of an automobile, a motorcycle, or a quadricycle to carry persons in its rear parts or of its trailer.”

Paragraph 3 of article 11 of the Decree-Law n0 20/75 of 20/06/1975 that governs guarantorship provides that “even in the absence of any derogating provision, the guarantor shall not cover any deliberate liability from the guarantee”.

Article 22 of General regulations for the insurance coverage for motorised vehicles on road established by CORAR S.A, which later merged with SORAS AG Ltd on 29/06/20103; and currently branding as Sanlam Assurances Générales Plc provides that “when the insured person breaches the insurance agreement, the resulted risks shall not be covered”. However, when CORAR S.A happens to pay third parties’ claims on the behalf of the insured person, CORAR S.A

3 See The Certificate of Amalgamation as issued by Rwanda Development Board on 29/06/2010;

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has a reserved right to seek refund from the insured person, notwithstanding any other claims it might make on him”.

Articles 23 and 24 of the above mentioned regulations provide that the insured persons have an obligation to prevent risks. And for them to benefit insurance risk coverage, they must prove that they are faultless, or where need be, they must prove that they have done all their best to abide by terms of the contract. One of the grounds that might lead to non-coverage of the insured person’s risks, is the fact that the insured vehicle was being driven by a driver without a license legally recognized.

With regard to the analysis of the insurance contract, the law scholars that include Yvonne Lambert-Faivre and Laurent Leveneur argue that it is the court that has the authority to analyze the terms of an insurance contract. They argue that when the terms of an insurance contract are clear, understandable and self-explanatory, they must be interpreted as they are written; since any attempt for different interpretation might end up by distorting the intended meaning. And for countries that still have cassation courts, such inferred interpretations of an insurance contract might be quashed4. While for Barry Zalma, when the court is analyzing the terms of insurance contract, it must refer to the plausible intent of the contracting parties. The scholar argues that just like it is a practice for any other contract, the terms that are used in an insurance agreement must always carry the ordinary meanings, with the sole purpose of highlighting the parties’ compromised intended objectives5 .

The case file contains a copy of an insurance contract for a Fuso brand truck with plate number RAA 089W of 11/11/2014, it specifies that the vehicle insurance was for the transportation of goods and 3 passengers. The litigants have no disagreement over this contract, as regards the insured vehicle which should carry the goods and three passengers. The litigants concurred and had no discord on the fact that when the car got involved into the accident, it had 52 passengers in the rear part and it was driven by a driver without the driving license because his driving license was only for motorcycles.

The Court found that from the paragraph 17 up to 21 of the judgment rendered by the High Court, Chamber of Rwamagana, the High Court found that it is Kirehe District and the owner of the car that transported the people into the car, and they hired unqualified driver for driving the car yet he did not have Fuso driving category, as he only had a license for motorcycles. It is therefore clear that the insurance contract was breached, and the provisions of paragraph 4 of article 66 of the Presidential order n0 85/01 of 02/09/2002 regulating general traffic police and road traffic prohibits the drivers from carrying passengers in the rear part used for goods has been blatantly violated.

4 “Ce sont les juges du fond qui interprètent les clauses des polices d’assurance. Si celles-ci sont claires, précises et licites, elles doivent être appliquées, sinon la décision du juge encourt le risque de cassation pour dénaturation du contrat.” Yvonne Lambert-Faivre na Laurent Leveneur, Droit des assurances, Paris, Dalloz, 2005, p. 201 5 “Rules of insurance contract interpretation are applied by courts with the intent to fulfill the desires of all parties to the contract. The construction of insurance contract should be governed by the same rules of construction applicable to all contracts…Its terms are given their ordinary and generally accepted meaning and the primary goal of the court is to give effect to the written expression of the parties’ intent.” Barry Zelma, Insurance Law, Erlanger, The National Underwriter Company, 2015, p. 71.

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The Court finds that, after being granted the damages which should be based on the fact that Gatashya Ezra did not abide by the contract, he should not be liable for the damages with reference to the provisions of article 258 and 260 of Civil Code Book III then into force; since those articles have nothing to do with breach of contractual obligations as they rather refer to tort liability. A fact of not distinguishing contractual obligations from the deliberate tort liability led the High Court, Chamber of Rwamagana into an error of joining Gatashya Ezra, the contacting party to a certain insurance agreement, and Kirehe District which was not bound by the insurance contract, so that it held that the owner of the car and Kirehe District are jointly liable for the payment of the charged civil damages.

The Supreme Court, along its various previous precedents that include the case with Mukaruhanga Alexia v. Nyirahabimana Emertha and Kold Hansen Jesper, and the case with Twagirayezu Alice and others v. Twagirayezu Albert and other, found that the general principle that is embodied within article 64 and paragraph one of article 113 of the Law n0 45/2011 of 25/11/2011 governing contracts, is that, except when so provided by the law, the effects of a contract are only limited to the contracting parties. Therefore, when the High Court, Chamber of Rwamagana has not first highlighted a certain interest that Kirehe District could expect from the insurance agreement between Gatashya Ezra and Sanlam Assurances Générales Plc, the High Court should not have rules that it should be bound by the effects of such contract.

The Court finds that the fact that Kirehe District needed a car to carry people for the event of welcoming the President of the Republic, and it was given Fuso brand type, and when the accident occurred, the District offered a support and sent cars to transport the wounded to the medical facilities, the fact that the District later gave cows to the victims traumatized by the accident, and the fact that it paid to Gatashya Ezra some 9,000,000 Frw for repairing his vehicle, are not related to the insurance contract that the owner of the car had concluded with Insurer because nothing proves that Kirehe District gave such support for fulfilling a certain commitment into the insurance contract. Therefore, it is not understandable how the High Court, Chamber of Rwamagana, held that Kirehe District breached the insurance contract.

The Court finds that Gatashya Ezra has deliberately decided to carry 52 passengers into the vehicle’s rear part, while he knew that the car had an insurance of only (3) passengers, and he deliberately allowed unlicensed driver to drive his car, this is not normal recklessness that constitutes an ordinary imprudence that contains no malicious intention, and nothing proves that he did so with some calculated and hidden target benefits6. It is simply a deliberate negligence and non-observance of his insurance contract, more so that his heirs cannot so far explain the motives of his decisions.

Just as the scholars in insurance legislation put it, the effect of a deliberate and intended breach of the insurance contract on the car owner, is that the insured risks cannot be covered the insurance scheme7 whether for the risks he/she might have personally suffered from, or any other

6 Ordinary negligence does not constitute an intention to cause damage, and a calculated risk does not amount to an expectation of damage...” See case City of Johnstown v Bankers Standars Insurance Co., 877 F 2d, at 1150 (2nd Cir.1989). 7 Introduire la garantie du fait intentionnel dans l’opération d’assurance en fausserait donc radicalement les prémisses: la technique d’assurance exige que le risqué assure soit un événement aléatoire, dont la réalisation ne dépend pas de la volonté de l’assuré ou du bénéficiaire du contrat. La réalisation volontaire du risqué par l’assuré ou le bénéficiaire

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risks from third party complaints. Therefore, and for the purpose of this case, the charged damages shall be paid by the heirs of Gatashya Ezra, since it is him who breached the concluded insurance contract. Considering all the above given explanations, the damages of 1,620,000 Frw that the High Court, Chamber of Rwamagana, has ordered to Ndagijimana Eugène, Mbonyinshuti Jean Damascène and Tuyishimire Charles for the accident that claimed the life of their sibling, shall all be paid by the heirs of Gatashya Ezra alone. 3. About the damages claimed in this case

Kirehe District submits that Sanlam Assurances Générales Plc does not prove the District‘s liability that should drag it into unnecessary lawsuits until the District got charged for civil damages, and it requested the Court to order to Sanlam Assurances Générales Plc to pay to it 1,000,000 Rwf for procedural fee.

Ndagijimana Eugène, Mbonyinshuti Jean Damascène and Tuyishimire Charles aver that the High Court, Chamber of Rwamagana ordered to them to pay to Sanlam Assurances Générales Plc 700,000 Frw for damages instead of compensating them, they requested the Court to invalidate the High Court’ s decision and instead order to it to pay to them 2,000,000 Frw for procedural fee for being dragged into unnecessary lawsuits and 2,000,000 Frw for counsel fee for all levels of proceedings.

The heirs of Gatashya Ezra submit that Kirehe District together with Sanlam Assurances Générales Plc brought them into unnecessary lawsuits, and they requested for 500,000 Frw for procedural fee and 1,000,000 Frw for counsel fee.

Sanlam Assurances Générales Plc states that Kirehe District’s request for damages is unfounded, there is no ground to nullify the damages charged to Ndajigimana Eugène, Mbonyinshuti Jean Damascène, and Tuyishimire Charles by the High Court, Chamber of Rwamagana, because they should not make an incidental appeal to the application of Kirehe District for the judgment review on the grounds of injustice while they did not lodge appeal, nor apply for the judgment review. DETERMINATION OF THE COURT

Article 111 of the Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labor and administrative procedure provides that “he claims 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”

The Court finds that the damages for proceedings claimed by Kirehe District are founded, the heirs of Gatashya Ezra are liable for such damages. However, the Court finds that the claimed

demeure donc hors du champ contractuel : c’est une exclusion légale de risque…” Yvonne Lambert- Faivre and Laurent Leveneur, Droit des assurances, Paris, Dalloz, 2005, p. 292

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amount of 1,000,000 Frw is so excessive, and moreover with no attached justification evidence; in the discretion of the Court, Kirehe District is granted 300,000 Frw for procedural fee.

With regard to the amount of 2,000,000 Frw for being dragged in unnecessary lawsuits and 2,000,000 Frw for counsel fee requested by Ndagijimana Eugène, Mbonyishuti Jean Damascène and Tuyshimire Charles, the Court finds that since they hired a professional lawyer for assisting them before the court of law, they deserve the counsel fee, however as the claimed fees are excessive, in the discretion of the Court, they are all granted 500,000 Frw for the counsel fee and 300,000 Frw for the procedural fee, the total is 800,000 Frw, and it will be paid by the heirs of Gatashya Ezra.

With regard to the damages amounting to 700,000 Frw charged by the High Court, Chamber of Rwamagana to Ndagijimana Eugène, Mbonyinshuti Jean Damascène and Tuyishimire Charles, and they claimed that they should be nullified, this Court finds that it has no basis to examine its justification, because, just as it has been above explained, because, a party that has not applied for the judgment review on the grounds of injustice, cannot make an incidental appeal to make some claims.

Concerning the amount 1,000,000 Frw for the counsel fee, and 500,000 Frw for the procedural fee claimed by the heirs of Gatashya Ezra from Kirehe District and Sanlam Assurances Générales Plc for being dragged in unnecessary lawsuits, the Court finds that their request is unfounded, since they have lost the case. III. DECISION OF THE COURT

Holds that the appeal filed by Kirehe District before the Court of Appeal is grounded;

Holds that the judgment RCA 00078/2018/HC/RWG rendered by the High Court, Chamber of Rwamagana is only overruled on the issue concerning the damages charged to Kirehe District;

Orders to the heirs of Gatashya Ezra to pay to Ndagijimana Eugène, Mbonyinshuti Jean Damascène and Tuyushime Charles a sum of 1,600,000 Frw as decided by the previous courts;

Orders to the heirs of Gatashya Ezra to pay to Ndagijimana Eugène, Mbonyishuti Jean Damascène, and Tuyishimire Charles 800,000 Frw for counsel fee and procedural fee;

Orders to the heirs of Gatashya Ezra to pay to Kirehe District 300,000 Frw for procedural fee.