KYAMAZIMA v. RDB Et. Al

# KYAMAZIMA v. RDB Et. Al

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-03-06 - Case/document no.: RADA 0003/13/CS - Collection: Supreme Court

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KYAMAZIMA V. RDB Et.Al [Rwanda SUPREME COURT – N° RADA 0003/13/CS (Hatangimbabazi, P.J., Karimunda and Gakwaya, J.) June 3, 2016] Administrative procedure – appeal – to revisit the final judgment in other judgment – the party loose the quality and interest on the judgment in case he/she revisits the final judgment in another judgment while he/she did not appeal against it. Law determining the jurisdiction of the Court – invalidation of auction which was already conducted – the law on determination of the jurisdiction of the Courts should not be applied for invalidating the auction when the one who carried it out was not an administrator and what he /she did are not the decisions taken by the administrators also it is not a claim an action relating to damages based on grounds other than contractual or quasi contractual, if the damage is as a result of an act or omission of the administration or due to acts carried out in public interest because the auction does not carry out by the administration – Organic law n 51/2008 of ᵒ 9/9/2008 determining the organisation, functioning and jurisdiction of Courts, article 93. Administrative law – the competent court in there are disputes base on termination of the loan contract which provides the auction – any claim relates to the disputes of terminating the loan contract which provides for auction in case the auction was carried out by the mortgage administrator, it must be examined by the Commercial Court because the mortgage contract which provides the auction resulted from the commercial loan Fact : on 14 April 2008 Kyamazima was given the loan with Bank of Kigali BK, then she offered to it the mortgage of house locates at Nyagatare; they agreed that if she will fail to pay that loan the mortgage will be auctioned without recourse to judicial proceedings. Kyamazima failed to pay that loan, then BK Ltd requested to the Registrar General the right of auctioning that mortgage; Registrar General gave to BK Ltd an official document RDB/3/RG/0376/07/11 of selling it through auction, then Counsel RUTEMBESA Phocas was in charge of managing that mortgage. Kyamazima filed against the intermediate Court and intervened by force Counsel Rutembesa, she requested for stopping the auction which was planned, then the Court did not admit her claim; this led her to appeal against High Court Rwamagana chamber also ruled that the official document RDB/3/RG/0376/07/11 which the registrar general gave to BK Ltd should be implemented because it is lawful. Kyamazima filed another claim at High Court against the Registrar General, Counsel RUTEMBESA and BK Ltd, requesting the annulment of the auction which was conducted because it was unlawful; praying also to be given back her rights and the various loss damages resulted from that auction; but the Court held that the claim is inadmissible. Kyamazima appealed to the Supreme Court in stating that the High Court disregarded the provision of the organic law determines the organisation, functioning and jurisdiction of Courts that grants to that Court the power to remove the decision which is illegally taken and to hear actions relating to damages based on grounds other than contractual or quasi contractual. She stated in addition that the High Court disregarded the provisions of Law on mortgage and what

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are provided by the loan contract which was concluded between Kyamazima and BK Ltd, moreover it contradicted itself in deciding that her claim against BK Ltd, Counsel Rutembesa and Murekatete did not fall into its jurisdiction At the beginning of the hearing, Kyamazima requested for forced intervention of Murekatete in this judgment, and then the interlocutory judgment held that MUREKATETE should not be forced for intervention in this judgment The judgment on merit, the Counsel for RDB defended in stating that he realizes that the decision n RAD 0011/12/HC/KIG has the merit because it did not have the competency for ᵒ rendering the judgment, this case is originated from the performance the commercial contract which the persons concluded with financial institutions therefore the disputes will be resolved by the Commercial Courts, moreover the power of the registrar shall not be an administrative decision so that it could be filed to Courts which hear administrative judgment, rather it is the procedure act which is provided by the Law. Also the law of 15/5/1922 that provided the sell without recourse to judicial proceedings together Royal decree of 21 November 1925, should not be based on in this judgment because the mortgage was offered after their removal, rather it should be used Law n° 10/2009 of 14/05/2009 on mortgages. Counsel Rutembesa that this the appeal of Kyamazima Françoise has no basis because nothing which demonstrates what she criticises the official document of the registrar general and also they cannot be revisited in this judgment because it was finally decided at High Court, thus to revisit on it, it is to file another claim at appeal level. Counsel for BK Ltd states that the official document of the registrar general has no defect, so it should be implemented, he realises also that the laws which must be applied in this judgment are Law n°10/2009 of 14/05/2009 on mortgage as it modified and complemented by the Law nº 13/2010 of 07/5/2013 together with instructions of the registrar general n° 03/2010/org of 16/11/2010 on modalities of lease, sale, public auction and mortgage acquisition, instead of applying the decree mentioned above which were abrogated. Counsel Rutembesa and BK Ltd conclude in requesting the damages for being dragged into vexatious litigations and the counsel fees. Held: 1. The fact that kyamazima did not appeal against the decision of the High Court which held the official document RDB/3/RG/0376/07/11 is lawful so that it should be implemented, therefore she does not have the status and the interest of revisiting it in case it was ruled that it is lawful. 2. The law on determination of the jurisdiction of the Courts should not be applied for invalidating the auction when the one who carried it out was not an administrator and what he /she did are not the decisions taken by the administrators also it is not a claim an action relating to damages based on grounds other than contractual or quasi contractual, if the damage is as a result of an act or omission of the administration or due to acts carried out in public interest because the auction does not carry out by the administration. 3. Any claim relates to the disputes of terminating the loan contract which provides for auction in case the auction was carried out by the mortgage administrator, it must be examined by the Commercial Court because the mortgage contract which provides the auction resulted from the commercial loan.

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4. A party has the right to appeal against the judgment when he/she does not satisfy with its rulings, therefore Kyamazima should not pay the damages for dragging into lawsuit Counsel Rutembesa and BK Ltd. 5. In case the requested Counsel fees are excessive, they should be awarded into the discretion of the Court Appeal has no merit. With the Court fees to the appellant. Statutes and statutory instruments referred to: Law n°10/2009 of 14/05/2009 on mortgage, article 24,26 and 28. Organic law n 51/2008 of 9/9/2008 determining the organisation, functioning and jurisdiction of ᵒ Courts, article 93. Law nº 13/10 of 07/5/2010 modifying and complementing Law n°10/2009 of 14/05/2009 on mortgage, article 4 Decree law 30/07/1888 relating to Contracts or obligations, article 258. Law n° 21/2012 of 14/6/2012 relating to the civil, commercial, labour and administrative procedure, article 162. No cases referred to. Judgment I. BRIEF BACKGROUND [1] On 14 April 2008, KYAMAZIMA Françoise was given a loan of 80,000,000Frw by Bank of Kigali (BK Ltd), also she mortgaged her house on plot nº 2007 located at Nyagatare cell, sector of Nyagatare, East province. The loan the contract was provided that in case KYAMAZIMA Françoise fails to pay that loan, the mortgage house will be sold through the sell without recourse to judicial proceedings as it is provided for by article 16 of the law of 15 May 1922 on mortgage together with Royal decree of 21 November 1925 on mortgage –auction provided by the contract. [2] On 23 March 2010, KYAMAZIMA Françoise registered the mortgage at the office of the Registrar General so that it could have the value [3] KYAMAZIMA Françoise failed to pay the given loan; this led BK Ltd to request the Registrar General the right of selling that mortgage. Registrar General gave to BK Ltd an official document RDB/3/RG/0376/07/11 of 12 July 2011 in order for selling through auction that mortgage, then Counsel RUTEMBESA Phocas was in charge of managing that mortgage. [4] After that, KYAMAZIMA Françoise filed unilateral claim at the Intermediate Court of Nyarugenge and intervened by force the Counsel RUTEMBESA Phocas who was in charge of managing that mortgage at intermediate Court of Nyagatare, requesting for stopping the auction

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which is planned on 12 August 2011. On 19 August 2011, that Court rendered the judgment nᵒ RC 0068/011/TGI/NYG and held to not admit the claim of KYAMAZIMA Françoise [5] KYAMAZIMA Françoise did not satisfy with the rulings of that judgment and she appealed at the High Court, chamber of Rwamagana. On 9 September 2011, that court rendered the judgment n RCA 0053/11/HC/RWG and ruled that the official document ᵒ RDB/3/RG/0376/07/11 of 12 July 2011, which the Registrar General gave to BK Ltd in order to sell the mortgage provided by KYAMAZIMA Françoise, should be implemented because it complies with the law. [6] After that KYAMAZIMA Françoise filed another claim against the Registrar General, Counsel RUTEMBESA Phocas and BK Ltd at the High Court, requesting the annulment of the auction which was performed on 21 October 2011, because it was unlawfully conducted; praying also to be given back her rights and the various loss damages resulted from that auction. [7] That court rendered the judgment RAD 0011/12/HC/KIG on 14 February 2012 and ruled to not admit for examining the claim of KYAMAZIMA Françoise because she filed against the Registrar General without ground, and also the claim did not fall into the jurisdiction of the High Court that deals with the administrative cases. [8] KYAMAZIMA Françoise did not satisfy with that judgment and appealed at the Supreme Court in stating that the High Court disregarded the provision of article 93,1o na 3o of the organic law n 51/2008 of 9/9/2008 determining the organisation, functioning and jurisdiction of Courts ᵒ that grants to that Court the power to remove the decision which is illegally taken and to hear actions relating to damages based on grounds other than contractual or quasi contractual. She stated in addition that the High Court disregarded the provisions of article 4 paragraph 2 of Law nº 13/10 of 07/5/2010 modifying and complementing Law n°10/2009 of 14/05/2009 on mortgage and what are provided by the loan contract which was concluded between KYAMAZIMA Françoise and BK Ltd, moreover it contradicted itself in deciding that her claim against BK Ltd, Counsel RUTEMBESA Phocas and MUREKATETE did not fall into its jurisdiction. [9] The hearing was conducted in public on 17 November 2015, KYAMAZIMA Françoise represented by Counsel NKUBA Milton, BK Ltd represented by Counsel RUSANGANWA Jean-Bosco, the Registrar General represented by Counsel BUZAYIRE Angèle. At the beginning of the hearing, Counsel NKUBA Milton requested to this Court for forced intervention of MUREKATETE in this judgment. [10] On 8 January 2016, this Court rendered interlocutory judgment, and held that MUREKATETE Jacqueline should not be forced for intervention in this judgment at appeal level, and held that the hearing on merit will continue on 16 February 2016. [11] On 16 February 2016, the Court did not be able to hear the judgment because KYAMAZIMA Françoise did not have the Counsel, the one she had, he gave back to her the case file, the judgment was suspended and be postponed on 12 April 2016 so that she could find another Counsel. [12] The hearing in public was conducted on 12 April 2016, KYAMAZIMA Françoise represented by Counsel MUSORE GAKUNZI Valéry and Counsel KAYIGIRE François, the

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Registrar General represented by Counsel SANGANO Yves whereas BK Ltd represented by Counsel RUSANGANWA Jean-Bosco also later represents Counsel RUTEMBESA Phocas. II. ANALYSIS OF THE LEGAL ISSUE Determining whether the auction of 21 October 2011 should be annulled because it was unlawfully conducted [13] KYAMAZIMA Françoise requests the Court to invalidate the official document of the Registrar General which granted the right to sell her estate located in Nyagatare, also requests for examining the time in which the contract she entered with BK Ltd had began, terminated and the law that are governed it. [14] Counsel MUSORE GAKUNZI Valéry states that this judgment fallen into the jurisdiction of the High Court on the basis of article 93 paragraph 1 alt 1 of the organic law nᵒ 51/2008 of 9/9/2008 determining the organisation, functioning and jurisdiction of Courts, it provides for that the High Court has the power to remove the decision which is illegally taken. He also argues that it fallen into the jurisdiction of that Court by basing on article 93 paragraph 1 alt 3 of that organic law, which provides that Court has the power to hear actions relating to damages based on grounds other than contractual or quasi contractual. He explained that the liability cause by the Registrar General bases on the fact that he/she gave to BK Ltd the right to sell the mortgage which KYAMAZIMA Françoise offered, so the auction was based on his official document if it did not exist the auction would not be conducted; therefore he realises that Counsel RUTEMBESA Phocas sold the house on official document which did not exist because normally there should be the decision of the Court. [15] Counsel MUSORE GAKUNZI Valéry adduces that article 4, paragraph 2 of Law nº 13/10 of 07/5/2010 modifying and complementing Law n°10/2009 of 14/05/2009 on mortgage, provides for that “all mortgage contracts entered into prior to the commencement of this Law shall remain valid until their expiration”. He explains that the loan contract entered into between KYAMAZIMA Françoise and BK Ltd provided for that in case KYAMAZIMA Françoise will not pay the loan she was given, the mortgage she offered will be sold without recourse to judicial proceedings as it is provided for by article 16 of the law of 15 May 1922 on mortgage together with Royal decree of 21 November 1925 which grant to the Court of the first instance the jurisdiction to rule on decision of selling mortgage through the auction therefore he realises that the registrar general had not power to grant the official document for auctioning her mortgage rather basing on those Laws that power is granted to the Court . [16] Counsel MUSORE GAKUNZI Valéry states that another evidence which demonstrates that it would be taken the decision of the Court for auctioning the estate instead of being the official document of the registrar general, is that article 24 of Law n° 10/2009 of 14/05/2009 on mortgages provides for that should there be any opposition to any matters relating to the drafting of the mortgage contract and to the selling of the mortgage, the interested party shall refer the matter to the competent courts, he explains that before the auction and after it, KYAMAZIMA Françoise was showed to the registrar general that the auction was unlawfully conducted, but he/she did not consider it rather he/she choose to give the document to the one

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who won in auction which gives completely her estate that was sold, while the filed Court did not yet decide on it. [17] Counsel SANGANO Yves states that basing on article 12 of Law n 06/2012/OL of ᵒ 14/09/2012 relating to the civil, commercial, labour and administrative procedure, he realizes that the decision n RAD 0011/12/HC/KIG has the merit because it did not have the competency ᵒ for rendering the judgment, this case is originated from the performance the commercial contract which the persons concluded with financial institutions. He explains that this case is based on the performance of the mortgage contract which was between BK Ltd and KYAMAZIMA Françoise, which were provided for that in case the loan will not be paid, the mortgage estate will be auctioned without recourse to judicial proceedings according to what provides for by the law of mortgage; which means that all disputes resulted from implementing that contract will be resolved by the Commercial Courts. He argues also that in cast the loan was not paid, the law on mortgage is applied in all process of selling the estate. He explains that the power of the registrar general that he/she grants from the law, it cannot be called administrative decision so that it could be filed to Courts which hear administrative judgment, rather it is the procedure act which is provided by the Law. [18] Counsel SANGANO Yves states that law of 15/5/1922 that provided the sell without recourse to judicial proceedings together Royal decree of 21 November 1925, they should not be based on in this judgment because the mortgage was offered after their removal, rather it should be used Law n° 10/2009 of 14/05/2009 on mortgages because KYAMAZIMA Françoise registered her mortgage at the Registrar General in order to validate it, basing on its article 4, he recognizes as the law which should be applied in case the creditor did not pay. [19] Counsel RUTEMBESA Phocas states that the appeal of KYAMAZIMA Françoise has no basis because nothing which demonstrates what she criticises the official document of the registrar general that establish the auction. He explains that even if KYAMAZIMA Françoise states that the auction was conducted by basing on that document of the registrar general , it isnot sufficient in order to call it an administrative claim in case it does not fulfil what are required by article 93 of the organic law n 51/2008 of 9/9/2008 determining the organisation, functioning ᵒ and jurisdiction of Courts mentioned above. He continues in arguing that the fact that KYAMAZIMA Françoise criticised the official document of the registrar general cannot be revisited in this judgment because it was finally decided on in the judgment n RCA ᵒ 0053/11/HC/RWG mentioned above, thus to revisit on that claim in this judgment is to file another claim at appeal level while it is unlawful. [20] Counsel RUTEMBESA Phocas says also that on 23 March 2010 KYAMAZIMA Françoise registered her mortgage at the office of the registrar general in order to validate her mortgage contact as it provided for by article 4 of the law nº 10/2009 of 14/05/2009 on mortgage; article 4 of Law nº 13/2010 of 07/5/2013 modifying and complementing it, are complementing by instructions of the registrar general n° 03/2010/org of 16/11/2010 on modalities of lease, sale, public auction and mortgage acquisition. He realises that the provisions of those laws should be applied in case KYAMAZIMA Françoise failed to pay the loan, instead of basing on the Law of 15/05/1922 provided recourse to judicial proceedings together Royal decree of 21 November 1925 which were abrogated by the Laws already mentioned.

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[21] Counsel RUSANGANWA Jean-Bosco states that he finds that the appeal of KYAMAZIMA Françoise has no merit because what she is requester for was already decided on in the final judgment rendered by the high court, chamber of Rwamagana, whereby it decided the official document of the registrar general which was based on in selling the estate of KYAMAZIMA Françoise has no defect, that it should be implemented, he realises that it should not be revisited in this judgment. [22] Counsel RUSANGANWA Jean-Bosco concludes in stating that on what regards with the applicable law in this judgment, it should applied the Law n°10/2009 of 14/05/2009 on mortgage as it modified and complemented by the Law nº 13/2010 of 07/5/2013 together with instructions of the registrar general n° 03/2010/org of 16/11/2010 on modalities of lease, sale, public auction and mortgage acquisition, instead of applying the decree mentioned above which were abrogated. VIEW OF THE COURT [23] Article 93, paragraph one, alt 1 of the organic law n 51/2008 of 9/9/2008 determining the ᵒ organisation, functioning and jurisdiction of Courts, it provides for that “the High Court shall have powers to hear the following administrative cases from the Provincial and Kigali City level to that of the President of the Republic, requesting for removal of decisions illegally taken, decisions taken by incompetent persons or persons who act ultravires and which decisions were taken on the last instance”. Whereas it alt 3 provides that the “High Court hears actions relating to damages based on grounds other than contractual or quasi contractual, if the damage is as a result of an act or omission of the administration or due to acts carried out in public interest”. [24] Article 4, paragraph 1 of Law nº 13/10 of 07/5/2010 modifying and complementing Law n°10/2009 of 14/05/2009 on mortgage provides for that “article 26 of Law n°10/2009 of 14/05/2009 on mortgages is modified and complemented as follows: All mortgage contracts entered into prior to the commencement of this Law shall remain valid until their expiration”. [25] Article 24 of Law n°10/2009 of 14/05/2009 on mortgage provides for that “should there be any opposition to any matters relating to the drafting of the mortgage contract and to the selling of the mortgage, the interested party shall refer the matter to the competent courts”. [26] As it is obvious in paragraph ten of the appealed judgment, the High Court motivated that KYAMAZIMA Françoise files a claim in stating that the auction which was carried out by Counsel RUTEMBESA Phocas was unlawfully conducted but she does not demonstrate the link between of the action of Counsel RUTEMBESA Phocas and that of the registrar general because she did not prove that he carried out the duties of the Registrar General when she wants to criticise the acting by basing on the competency of administrative organ or proved that what Counsel RUTEMBESA Phocas should damage in conducting the auction the registrar general will be liable as the administrator.

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[27] In appealed judgment, the High Court motivated that in its eleven paragraph that even if KYAMAZIMA Françoise states that the High Court has the jurisdiction to hear her claim because the auction based on the official document of registrar general, but the fact that she not file for it in this judgment and she does not demonstrate what she criticise that official document, also the fact that the High Court Rwamagana chamber rendered the judgment n RCA ᵒ 0053/11/HC/RWG, which is now became final rules that the official document RDB/3/RG/0376/07/11 which was taken by the registrar general is lawful so that it should be implemented; KYAMAZIMA Françoise does not have the quality and interest to revisit in this judgment that issue in case it was ruled that the official document is lawful. [28] Supreme Court is finding that basing on article 93, paragraph 1, alt 1 of the organic law n 51/2008 of 9/9/2008 mentioned above, which is used by KYAMAZIMA Françoise, her claim ᵒ of annulling the auction of 21 October 2011 conducted by Counsel RUTEMBESA Phocas is not an administrative claim because the one who conducted that auction was not the administrator and what he carried out does not fall into the decisions taken by the administrators. It finds also basing on alt three of that article, the claim of KYAMAZIMA Françoise of annulling the auction carried out by Counsel RUTEMBESA Phocas is not an action relating to damages based on grounds other than contractual or quasi contractual, if the damage is as a result of an act or omission of the administration or due to acts carried out in public interest because the auction does not carry out by the administration. [29] Supreme Court finds even if the auction is the execution of a judicial decision which has become final or the termination of the loan contract which provides the auction by selling without recourse to judicial proceedings, those procedures are carried by the Court bailiff or mortgage administrator in order in this judgment, each claim relates to the disputes of terminating the loan contract which provides for auction in when the auction was carried out by the mortgage administrator, it must be examined by the Commercial Court because the mortgage contract which provides the auction resulted from the commercial loan. [30] Concerning the statement of KYAMAZINA Françoise that basing on the provision of article 4, paragraph one of Law nº 13/10 of 07/5/2010 modifying and complementing Law n°10/2009 of 14/05/2009 on mortgage, her claim is the administrative claim because the registrar general did not have the power to grant the official document for auctioning her mortgage, Supreme Court finds that the statements of KYAMAZIMA Françoise should not be given merit in it is clear in the judgment n RCA 0053/11/HC/RWG rendered by 9 September 2001 which ᵒ become final, the High Court, Rwamagana chamber, it rules that the official document of 12 July 2011 which the registrar general gave to BK Ltd in order to sell the mortgage provided by KYAMAZIMA Françoise, it is lawful. [31] In addition to that KYAMAZIMA Françoise interprets article 4 paragraph 1 of the law 13/2010 of 7/5/2010 mentioned above what it does not provide for because the legislator in that article wants to mean that the mortgage contract that was performed before the commencement of this Law shall remain valid on what concerns with the provided mortgage until their expiration but as it is indicated in article 28 of Law n°10/2009 of 14/05/2009 on mortgage, the legislator did not stipulate that in terminating the loan contract which provides the sell without recourse to judicial proceedings that was concluded before that law, it must be followed what provide for by the law of 15 May 1922 on mortgage and Royal decree of 21 November 1925 on

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mortgage –auction provided by the contract, because that law of 15/5/1922, including and Royal decree of 21 November 1925 which implements it and also all previous articles also contrary to the law n 10/2009 of 14/5/2009 were abrogated. ᵒ [32] Concerning article 24 of law n 10/2009 of 14/5/2009 on mortgage, KYAMAZIMA ᵒ Françoise states that it demonstrates that the auction carried out by Counsel RUTEMBESA Phocas must be annulled because it was not the registrar general who must decide about selling the mortgage she offered, the Supreme Court is finding that the article should not be used in this judgment because it concerns every person who has the interest in, who did not satisfy with the mortgage contract that was concluded between mortgagee and mortgagor or selling of the mortgage, he/she should seek to the competent Court by applying the third part opposition. [33] Basing on the provisions mentioned above and on the motivation provided in the previous paragraph of this, Supreme Court is finding the appeal of KYAMAZIMA Françoise has no merit. b. Determining whether the respondents should be awarded the damages they request for [34] Counsel RUTEMBESA Phocas states that he prays to the Court to order KYAMAZIMA Françoise to give 2,000,000Frw to him of the moral damages for being dragged into vexatious ligations and 1,500.000Frw of the Counsel fees. [35] Counsel RUSANGANWA Jean-Bosco states that BK Ltd requests the Court to order KYAMAZIMA Françoise to give 2,000,000Frw to it of the damages for being dragged into vexatious ligations and 1,000.000Frw of the Counsel fees. [36] Concerning with what are requested by Counsel RUTEMBESA Phocas, Counsel MUSORE GAKUNZI Valéry states that Counsel RUTEMBESA Phocas must not be given the damages he requsts for because he pleaded in his behalf. VIEW OF THE COURT [37] Article 258 of the civil code book III provides for that “any act of man, which causes damage to another obliges the person by whose fault it happened to repair it”. [38] Article 162, paragraph 1, Law n° 21/2012 of 14/6/2012 relating to the civil, commercial, labour and administrative procedure provides for that “any person who was a party to the proceedings in the first instance may appeal the judgment if he/she has an interest therein, except when the law provides otherwise”. [39] Concerning the damages which is requested by Counsel RUTEMBESA Phocas for being dragged into vexatious litigations, even if KYAMAZIMA Françoise says nothing on it, Supreme Court finds that it has no merit because it is the right of the party to appeal against the judgment when he/she does not satisfy with its rulings, therefore he should not be awarded those damages.

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[40] Concerning the Counsel fees which Counsel RUTEMBESA Phocas prays for, the Supreme Court is finding that he should be given it because he was assisted in this judgment, but because what he requests are excessive he was awarded 800,000Frw in its discretion. [41] Concerning the damages that are requested by BK Ltd for being dragged into vexatious litigation even if KYAMAZIMA Françoise says nothing on it, Supreme Court finds that it has no merit because it is the right of the party to appeal against the judgment when he/she does not satisfy with its rulings, therefore it should not be awarded those damages [42] Concerning the counsel fees which BK Ltd requests, apart from saying nothing by KYAMAZIMA Françoise, the Supreme Court finds that it should be given it but because what it requests are excessive, it should be awarded 800,000Frw in its discretion. III. DECISION OF THE COURT [43] Holds that the appeal of KYAMAZIMA Françoise has no merit; [44] Sustains the rulings of the judgment RAD 0214/11/HC/KIG rendered on 14/12/2012 by the High Court; [45] Orders KYAMAZIMA Françoise to pay to Counsel RUTEMBESA Phocas 800,000Frw of the Counsel fees; [46] Orders KYAMAZIMA Françoise to pay to BK Ltd 800,000Frw of the Counsel fees; [47] Orders KYAMAZIMA Françoise to deposit to court fees amounting to 100,000Frw.