MAGERWA v. TOLIRWA

# MAGERWA v. TOLIRWA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2011-11-04 - Case/document no.: RCOMA 0066/09/CS - Collection: Supreme Court

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MAGERWA v. TOLIRWA [Rwanda SUPREME COURT – 2011SC – RCOMA 0066/09/CS ( Mutashya, P.J., Havugiyaremye and Uwarugira, J.) November, 4th 2011] Commercial laws – Restitution undue payed moneny for manutention works done on goods (charge and discgarge of goods into the stores) – To know if the requesting person was in the right of being given the money equal to 1% of the value of goods and tranport (CIF). Since there are not evidences showing if there is manutention works done to the goods. Ministerial order Nº 051/00/FIN of 16/11/2000 modifying the order N º 03/ECO/88 of 16/03/1988 putting in place prices for those works. Commercial laws –To know whether the loss related interests have to be accounted at a rate of 18% per year. Facts: The appellant into the Supreme Court said that the previous court ordered him to return the money that the plaintiff paid without any reason, equal to rwf26.640. 620 and interests of 1% of goods value (CIF), for manutention work (charging and discharging of goods into the stores) the appellant said that he did some works for the plaintiffs. The plaintiff on his side too said that he has to return the right of 1% of goods value CIF Kigali could be five (5) manutention works as stated into ministerial order nº 051/00/FIN of 16/11/2000, since he did only one work of inspection. Held: 1. The fact that the plaintiff was having his own stores for goods, and there has been no evidence shown to prove that there was five manutention works done to the plaintff’s goods supposed to be paid a a rate of 1% of value of goods and transport, (CIF) since those goods were not going outside the country. So, the appellant has to return the money equal to rwf26.640.620 since it is appear that the plaintiff paid them without any reason. 2. The fact that the plaintiff continued to not having the chance of his money rwf26.640.620 within two years and 46 days, which casued him a big loss, so the appellant has to pay interest accounted to 18% per year. The total amount to be paid equal to rwf26.640.620 +rwf10.203.357+rwf800.000 = rwf37.643.977. The appeal has no merit. The cross appeal has merit in part. The appealed judgment remains changed in part. The court fees paid by the appellant. Statutes and statutory instruments referred to: Ministerial order Nº 051/00/FIN of 16/11/2000 modifying the order N º 03/ECO/88 of 16/03/1988 putting in place prices for those works.

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No Cases referred to: Judgment I.THE BRIEF BACKGROUND OF THE CASE [1] The Commercial High Court rendered decision on 18/09/2009, ordered MAGERWA to return to TOLIRWA rwf26.640.620 paid without reason, its interest equal to rwf4.795.311 honorary of 500.000 and rwf1.277.437 of court fees. [2] MAGERWA appealed into the Supreme Court saying that the court ordered them to return to TOLIRWA rwf 26.640.620 since there is works of “manutention” that have been done and TOLIRWA said that MAGERWA has to return that money including interest because there is no manutention works done. [3] Substantial hearing was held on 05/07/2011, MAGERWA assisted by Me BATWARE Jean Claude, and TOLIRWA assisted by Me NKURUNZIZA François Xavier. [4] On 27/06/2011, the court did its investigation into MAGERWA in order to know the activities for MAGERWA upon TOLIRWA’s materials that ordered from outside Rwanda and the way these materials were passing through to reach the into MAGERWA (concession d’entrepôt particulier). II. LEGAL ISSUES OF THE CASE AND ITS ANALYSIS 1. To know if there is “manutention” work that MAGERWA has done on TOLIRWA’s goods between year 2001 and 2004 in order to charge 1% of value CIF Kigali.

[5] The Advocate of MAGERWA said that they don’t have to return the money rwf26.640.620 to TOLIRWA because when they did a discharge of goods (déchargement) and controlled (vérification douanière) in order to know them and its value as shown into the “avis d’arrivée” and there time when they proceeded to charge them before its removal from MAGERWA. [6] He says that MAGERWA did one “manutention” work of TOLIRWA out of (5) as stated in article 1 of the Ministerial order n°051/00/FIN of 16/11/2000 modified the ministerial order n°03/ECO/88 of 16/03/1988 putting in place the prices for that manutention work, which were allowing them to charge 4 % of value that CIF Kigali including its 1%. [7] He continue saying that the letter of Rwanda revenue authority Commissioner that wrote to TOLIRWA on 14/08/2001 informing TOLIRWA to pay the money of the work done when its vehicles are being valued of its wheat, parking fees, fees for “avis d’arrivée” and transit fees have to be ignored because that authority used the word “transit” as if TOLIRWA’s goods were passing through Rwanda going to another country. [8] He says the previous court exceeded when ordering interest of rwf4.795.311 accounted from 18 % since there was no contract between MAGERWA and TOLIRWA showing that they were

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agreed to account interest to that rate. Also it has been ordered to pay rwf500, 000 of court fees since there is no any evidence for it. He said that TOLIRWA has to pay court fees of rwf200.000 and damages rwf26.640.620 fixed by the court in its appreciation for both level of trial. [9] The Advocate of TOLIRWA says that they don’t have to pay to MAGERWA rwf26.640.620 since they didn’t do discharge of the above said goods because it was done from it store (concession d’entrepôt particulier), the control was done into the vehicles. He says that “avis d’arrivée” done were paid separately. [10] he says that the fact to give to MAGERWA the right to charge them 1% of CIF Kigali because it was supposed to do the five (5) “manutention” works as stated in ministerial order n° 051/00/FIN above mentioned, because one activity of controlling goods without discharging them was not enough in order to charge 1%. THE VIEW OF THE COURT [11] The contract government of Rwanda, represented by Ministry of finance, signed with TOLIRWA in different times showing that TOLIRWA had its “entrepôt” for its goods. On the other side, MAGERWA should verify that “entrepôt” because he was holding its keys, and TOLIRWA was keeping its goods in MAGERWA, especially “avis d’arrivée” that TOLIRWA should use to pay taxes. [12] Regarding “manutention” works of MAGERWA for its clients, article 1 of ministerial order n° 051/00/FIN of 16/11/2000 modified order n° 03/ECO/88 of 16/03/1988 stated the money for “manutention” which is 4 % of value CIF Kigali, paid only for the following works: 1. Discharge of goods that came into MAGERWA; 2. Arrangement of goods after discharge; 3. Keeping goods within 15 days from the day of its discharge; 4. Control works in MAGERWA during notification; 5. Arrangement of goods before charging for its. [13] That article stipulates works other than “manutention” done by MAGERWA, which should be paid separately. The article 2 was stipulating 4 % of value CIF Kigali, MAGERWA should deposit to public treasury its 3 % each month, and remain with 1 % of value CIF Kigali, which means that there is money that MAGERWA was supposed to charge TOLIRWA for each service delivered. [14]The court found the there is need to know if there has been “manutention” work that MAGERWA did for TOLIRWA’s goods since it was having its store, in order to know if MAGERWA was having right to charge them 1 % value CIF Kigali equal to rwf26.640.620, if

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yes, MAGERWA has to remain with that money, but if not MAGERWA has to return that money to TOLIRWA. [15] The court found that this issue between MAGERWA and TOLIRWA, submitted to the MAGERWA’s officials and Rwanda Revenue for its ideas. [16] In replying the letter ref. V/L nº 153/DIR/TN/NC/01 of 06/08/2001 that TOLIRWA addressed to Commissaire des Douanes et Accises regarding the 1 % of value CIF, the director general of RRA replied in his letter of 14/08/2001, that it should not pay MAGERWA 1 % of value CIF Kigali because its goods are no longer kept into MAGERWA, explaining that goods for clients are kept in the stores of MAGERWA, informing that they should pay the money their vehicles, parking fees, for “avis d’arrivée” and money for “transit”. [17] The court found that the fact that MAGERWA is saying that the letter has to be ignored because the director general of RRA used the word “transit” has no legal, because this authority said that TOLIRWA should pay the above mentioned money before its goods goes to the particular stores, which means that goods were not going outside Rwanda. [18] Also into his letter ref. 01/0157/IB/ns/17/02 of 23/04/2002, the director general of MAGERWA replying to this issue TOLIRWA in its letter of 09/04/2002, explained that there has been works that MAGERWA did for TOLIRWA relating to “pointage”, “étabissement de la carte de déchargement et de l’avis d’arrivée”. The court found that the works that said by director of MAGERWA are not in relation with five manutention work which were supposed to be paid on 1% of value CIF Kigali following the ministerial order above mentioned. [19] Following on what has been confirmed by MAGERWA officials and director general of RRA, the court found that there no evidences showing that there have been manutention works did for TOLIRWA’s goods which were supposed to be paid at a rate of 1% of value CIF Kigali following on what is stipulated by the article 1 of ministerial order above said, for those reasons MAGERWA has to return to TOLIRWA rwf26.640.620 because it is evident that TOLIRWA paid without any reason. [20] The court found there is no interest to be paid to MAGERWA even court fees because its appeal has no legal basis. 2. Regarding TOLIRWA Cross Appeal [21] The Advocate of TOLIRWA says that its appeal is based on the request of MAGERWA’s interest ordered by the court have to be accounted to the rate of 18 % until the payment. Also, asked that MAGERWA has to pay 10 % of court fees because this trial has been delayed into different level of courts. [22] The Advocate of MAGERWA says that it should not pay the interest because they were having right to charge TOLIRWA 1% because there was manutention works did for TOLIRWA, but if the court found better for them to pay the interest, it has to be accounted at 9 % the same rate as those deposited into the banks as confirmed by the national bank.

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[23] Regarding the interest that the previous judge ordered in the favour of TOLIRWA rwf4.795.311. the court found that the fact that MAGERWA continued to keep for TOLIRWA rwf26.640.620 within 2 years and 46 days, starting from the substantial hearing to this trial on 18/09/2009 until when the decision was rendered on 04/11/2011, it is evident that generated a loss for TOLIRWA, so MAGERWA has to give TOLIRWA the interest accounted at the rate of of 18% per year at the same rate like bank (intérêts bancaires) because TOLIRWA is business company, that interest are accounted into the following terms: [1] Rwf26.640.620 x 18 x 766 days = rwf10.203.357. [2] 100 x 360 [24] Regarding to court fees the previous judge had said TOLIRWA has to benefit rwf500.000 of court fees including fees for appeal which is rwf300.000 with total of rwf800.000 for all, confirmed in judge’s appreciation. [25] The court found that the money that MAGERWA has to pay to TOLIRWA equal to rwf26.640.620 + rwf10.203.357 of interest + 800.000 court fees, total rwf37.643.977. III. THE DECISION OF THE COURT [26] Court confirms to receive the appealing case of MAGERWA and of TOLIRWA cross appeal because it was submitted in conformity with the law ; [27] Court decides that the appeal for MAGERWA has no merit, but the declares that the appeal of TOLIRWA has merit ; [28] Says that the judgment RCOM 0036/09/HCC rendered by the commercial high court on 18/09/2009 has changed in part ; [29] Orders MAGERWA to give TOLIRWA rwf37.643.977 with its 4% equal to rwf1.505.759 of public treasury; in case of default of payment in 8 days, they will be drawn from its properties by the public force. [30] Orders MAGERWA to pay court fees of rwf 33.900; ; in case of default of payment in 8 days, they will be drawn from its properties by the public force.