MANIRARORA v. RWANDA RUDNIKI LTD

# MANIRARORA v. RWANDA RUDNIKI LTD

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2022-06-28 - Case/document no.: RS/INJUST/RC 00013/2021/CA - Collection: Court of Appeal

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MANIRARORA v. RWANDA RUDNIKI LTD [ Rwanda COURT OF APPEAL-RS/INJUST/RC 00013/2021/CA (Rukundakuvuga, P.J., Kamere and Ngagi, J.) 28 June 2022] Civil law – Torts liability- work related accidents – A person has an obligation of inspection over objects/subjects that are under his/her stewardship; and the steward is legally liable for the torts committed by third parties that are under his/her stewardship. Civil law – suing – suing an insurer or an employer-a victim of work related accident who chooses not to sue the insurer but sues the employer does no wrong. Civil law – Torts liability – Damages resulting from accidents other than road – related accidents – while computing the damages resulting from non-road related accidents, the Presidential order that establishes the indemnity for road-related accident does not apply; however, its formula can serve for a reference. Civil procedure – the validity of an act- an act that the Court might consider – Regulations- Regulations refer to a general act that was enacted and signed by a competent authority with an aim of implementing a given law or with a purpose of regulating some other aspects that are not governed by any law. Regulations must be published under the State Official Gazette. Facts: This case started from Muhanga Intermediate Court with Manirarora suing Rwanda Rudniki Ltd whereby Manirarora prayed the Court to order Rwanda Rudniki Ltd to pay him for damages resulting from work-related accidents, and thus computing them with reference to the Presidential order establishing the indemnity for automobiles related accidents, arguing that he was an employee for the defendant and he thereof sustained 40% of body permanent incapacity. The seized Court heard case RC 00006/20107/TGI/MHG and held that the filed claim has a justification and it ordered Rwanda Rudniki Ltd to pay Manirarora for a variety of damages. Rwanda Rudniki Ltd was not satisfied with the ruling and they appealed to Nyanza High Court Chamber, and lamented that Muhanga Intermediate Court ordered them to pay damages to Manirarora, a person with whom they have never had any Rwandan labour law related agreement. In addition to that, Rwanda Rudniki Ltd has as well appealed that the Court computed the above damages with reference to the Presidential order establishing damages for automobile related accidents, yet the claimant had never had any road-related accident. Nyanza High Court Chamber heard case RCA 00104/2017/HC/NYZ and held that the appeal by Rwanda Rudniki Ltd filed in the name of its Managing Director has merit in part; the above appellate court has also moved that the ruling of case RC 00006/2017/TGI/MHG rendered by Muhanga Intermediate Court changes in part, and that the requested damages will be computed with reference to the Regulations by Rwanda Mines, Petroleum and Gas Board; and the Court ordered SAHAM Assurance Rwanda Ltd, in the name of its Managing Director, to Manirarora for various damages. Manirarora petitioned to Nyanza High Court Chamber and applied for review for case RCA 00104/HC/NYZ rendered by Nyanza High Court, and he alleged the ruling contains deceit., the court heard the case RS/REV/RC 00004/2018/HC/NYZ and it held the application for the review of case RCA 00104/2017/HC/NYZ filed by Manirarora is not admitted.

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Manirarora petitioned the Court of Appeal and besought for the review of case RCA 0104/2017/HC/NYZ rendered by Nyanza High Court Chamber due to injustice related grounds. The President of the Court of Appeal analysed the application and he wrote to the President of the Supreme Court requesting to allow the review of the concerned case as it seemed to be containing some injustice. The president of the Supreme Court confirmed for the injustice related review, and the case was sent into the Court of Appeal for review. Rwanda Rudniki Ltd requested to have Sanlam AG Plc, their risk insurer, intervene in the case, and Sanlam intervention was granted. Manirarora’s representative submitted that the risk insurance agreement between SANLAM AG PLC and Rwanda Rudniki Ltd was not fair, and that such an agreement solely concerns those who concluded it. He adds that that is the reason as to why they chose to sue Rwanda Rudniki Ltd and he requested the Court to move that the suing procedure was appropriate since it is Rwanda Rudniki Ltd that has failed to conclude fair risk insurance for its employees. Rwanda Rudniki Ltd representative submits that the charged damages have no justification as it is unfair to be charged for damages without a tort. He argues that article 260 of the civil code was to penalise them if they had never take any risk insurance, but since they already have the insurance policy, it is up to SUNLAM AG Plc, the insurer, who are responsible for the payments, therefore the very people to be sued. SANLAM AG Plc representative argued that Manirarora has never sued SANLAM AG Plc, therefore they have nothing to be charged for in this case. He however added that in case the court finds it otherwise, and sees that SANLAM AG Plc ought to pay for some damages, let the payments be effected in the limits of the agreement that SANLAM AG Plc concluded with Rwanda Rudniki Ltd. The Court of Appeal held that Maniraroro did no wrong to sue Rwanda Rudniki Ltd for the payment of his work-related accident, since he had this accident while at work at their mine concession, and the Court moved that Rwanda Rudniki Ltd is liable for payment for damages related to the accident that Maniraroro sustained while working at their mining concession. Held: 1. A person has an obligation of inspection over the objects that are under his/her stewardship; and the steward is legally liable for the torts committed by third parties under his/her custody 2. A victim of work related accident who chooses not to sue the insurer but sues the employer does no wrong. 3. Regulations refer to a general act that was enacted and signed by a competent authority with an aim of implementing a given law or with a purpose of regulating some other aspects that are not governed by any other law. Regulations must be published under the State Official Gazette. 4.While computing the damages resulting from non-road related accidents, the Presidential order that establishes the indemnity for road-related accident does not apply; however its formula can serve for a reference The application for an injustice related case-review has a justification. The judgmentthat is under review for injustice related review has entirely changed Statutes referred to:

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Law No 30/2018 of 02/06/2018 determining the jurisdiction of Courts, article 63. Law No 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, articles 9 and 111. Regulations No 01/2014 relating to the Scale of Advocates’ fees, article 26 Law of 30 July 1888 Civil Code book III, articles 258 and 260. Cases referred to: RADA 0054/12/CS; Kayijuka Gaspard v. The Government of Rwanda (Minisanté) rendered by the Supreme Court on the 19/12/2014, RCAA 0049/14/CS; SORAS AG Ltd v. Umuhoza Pacific et al. rendered by the Supreme Court on the 25/11/2016; RCAA 00073/2018/CA; Nyirabatesi Laurence v. King Faisal Hospital rendered by the Court of Appeal on the 19/07/2019. RCAA 0008/2020/CA; Ndizeye Alphonse v. Kibungo Medical Center together with Prime Insurance Company Plc rendered by the Courtof Appeal on 25/06/2021.

Legal doctrine referred to : Philippe Le TOURNEAU et autres, Droit de la responsabilité et des contrats: régimes d’indemnisation, 10 ème édition, Paris, Dalloz, 2014, pp.1973-1974 Francois Terré, Philippe Smeler na Yves Lequette, Droit civil. Les obligations, 11ème édition, Paris, Dalloz, 2013, p.253. Serge GUINCHARD, Lexique des termes juridiques 2015-2016, 23 ème édition, 2015, Paris, Dalloz, p. 887 Gérard CORNU, Vocabulaire Juridique, 2007-, 8 ème édition, Paris, Quadrige/PUF, p. 789. Judgment I. THE BACKGROUND OF THE CASE [1] Manirarora Jean de Dieu was an employee of Rwanda Rudniki Ltd, a mining company, for which he worked from since 2008 up to 29/10/2015 the date at which he had work-related accident as the mine he was working in collapsed on him and it broke him the leg and he sustained serious injuries on one side of the head. This accident left his body with 40% of a permanent incapacity. [2] Manirarora Jean de Dieu notified Rwanda Rudniki of his accident, but they told him to report the accident to SAHAM Assurance Rwanda Ltd, the mine’s insurer. Manirarora Jean de Dieu approached SAHAM Assurance Rwanda Ltd (the former CORAR Insurance company) as the mine’s Insurer, but he found that Rwanda Rudniki Ltd and the Insurer had signed an agreement stipulating that on the top of funeral expenses, the Insurer will only disburse 1,000,000 Rwf for any worker who dies in the mine, while any worker who sustains any injuries will be compensated in the right proportion of the sustained incapacity. Manirarora found the above insurance policy

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unfair, and he sued Rwanda Rudniki Ltd, his employer, before Muhanga Intermediate Court and prayed the Court to order Rwanda Rudniki Ltd to pay him compensation for the 40% of body permanent incapacity that he sustained ; he so requested in reference to a President order that establishes indemnity for automobile related accidents. [3] In case RC 00006/2017/TGI/ MHG rendered by Muhanga Intermediate Court on 26/10/2017, this court held that the claim filed by Manirarora Jean de Dieu has merit, and it ordered Rwanda Rudniki to pay Manirarora Jean de Dieu 4,099,607 Rwf for the incurred economic loss, 432,000 Rwf for moral damages, 432,000 Rwf for body distortion and 540,000 Rwf for the loss of employment and 100,000 Rwf spent on medication plus 50,000 for case related expenses and 500,000 Rwf for the Counsel fee. The total damages amounted to a sum of 6,153,607 Rwf and the Court ordered Rwanda Rudniki Ltd to refund him the 50,000 Rwf for the Court fees. [4] Rwanda Rudniki Ltd was not satisfied with the above ruling and they appealed to Nyanza High Court Chamber, and lamented that Muhanga Intermediate Court ordered them to pay damages to Manirarora, a person with whom they have never had any Rwandan labour law related agreement. In addition to that , Rwanda Rudniki Ltd has as well appealed that the Court computed the above damages with reference to the Presidential order n0 31/01 of 25/08/2003 establishing indemnity for automobile related accidents, yet the claimant had never had any road-related accident. [5] On the 10/07/2018, Nyanza High Court Chamber heard case RCA 00104/2017/HC/NYZ and held that the appeal filed by Rwanda Rudniki in the name of his Managing Director has merit in part, and the very court held that the ruling of case RC 00006/2017/TGI/MHG as decided by Muhanga Intermediate Court on the 26/10/2017 changes in part, the court has also held the required damages shall be computed in reference to Rwanda Mines, Petroleum and Gas Board, and the Court ordered SAHAM Assurence Rwanda Ltd and in the name of its Managing Director, to give Manirarora Jean de Dieu 2,906,920 Rwf and the Court moved that the court fees equate the proceeding expenses. [6] On 31/08/2018, Manirarora Jean de Dieu applied for the review of case RCA 00104/2017/HC/NYZ and his claim was registered as RS/REV/RC 00004/2018/HC/NYZ, and he submitted that the concerned judgmentcontained deceit. On the 25/10/2018, Nyanza High Court Chamber held that the application for review of case RCA 00104/2017/HC/NYZ filed by Manirarora Jean de Dieu is thereby not admitted. [7] Manirarora Jean de Dieu petitioned the Court of Appeal and he sought for the review of case RCA 00104/2017/HC/NYZ for injustice related grounds. The President of the Court of Appeal analysed the petition, and he wrote to the President of the Supreme Court and requested him to have the concerned case reviewed for a plausible injustice. On the 11/02/2021, the President of the Supreme Court issued a writ n0 112/CJ/2021 and ordered the case to be reviewed for injustice related grounds. He sent the case to the Court of Appeal for a review, and the case was docketed as RS/INJUST/RC 00013/2021/CA [8] Manirarora Jean de Dieu applied for the case review for injustice related grounds, and he submitted that Nyanza High Court Chamber ordered SAHAM Assurance Rwanda to pay him 2,906,920 Rwf for damages yet SAHAM Assurance has never been a litigant into this case.

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Maniraroro Jean de Dieu argued that it is Rwanda Rudniki Ltd that is liable for the payment of the damages and he requested that the damages should be computed in reference to the Presidential Order n0 31/01 of 25/08/2003 establishing the indemnity for automobile related accidents since there is no law that pertains to mine concessions-related accidents [9] The case was heard in public on 06/04/2022 with Manirarora Jean de Dieu represented by Counsel Nzeyimana Alexis whereas Rwanda Rudniki Ltd, was represented by Counsel Nsengiyaremye Jean Claude. Rwanda Rudniki Ltd requested to have Sanlam AG Plc, their insurer, intervening into the case, and the Court referred to article 118 of the law no 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, and it instantly held to summon Sanlam AG Plc, Rwanda Rudniki’s risks insurer, to intervene into the case. The case was again heard on the 09/05/2022 with both Manirarora Jean de Dieu together with Rwanda Rudniki Ltd again represented as before while Sanlam AG Plc was represented by Counsel Rwimo Clotilde, the pronouncement of the case was scheduled on the 30/05/2022, but when this date come, the pronouncement was adjourned to 17/06/2022, but still it did not occur, not until the 28/06/2022. [10] In the course of hearing, most of the debates between the litigants were about to determine whether Rwanda Rudniki Ltd should be ordered to pay any damages related to the mine accident that Manirarora Jean de Dieu sustained from their concession, the debates were also about determining the right amount of the requested damages, their computation, and the liable person. II. ISSUES OF THE CASES AND THEIR CORRESPONDING ANALYSIS 1. Whether Rwanda Rudniki Ltd should be ordered to pay for damages resulting from the accident that Manirarora Jean de Dieu has sustained from their mine concession. [11] The Counsel that represents Manirarora Jean de Dieu referred to article 260 of civil code book III, then in force when Manirarora sustained the accident, and argued that it is Rwanda Rudniki Ltd that is liable to the payment of the damages that Manirarora Jean de Dieu has claimed for. He explains that when Manirarora Jean de Dieu sustained the accident from Rwanda Rudniki’s mining concession, he harried to notify them of the accident, and they informed that they have an insurance policy with SAHAM Assurance Rwanda Ltd ( the former CORAR AG Ltd) which later changed to be SANLAM AG Plc, he goes on to say that he approached the insurer, and he found that the insurance policy that Rwanda Rudniki Ltd signed with SANLAM AG Plc stipulated that when an employee does in the mines, the insurer will pay 1,000,000 Rwf for the indemnity, but when an employee happens to have any mine-related accident and sustains injuries, the insurer indemnifies the employee in proportion to the sustained body invalidity. Manirarora Jean de Dieu submits that he approached the insurer for the issue, and they informed that he can only be entitled to 400,000Rwf alone. But since the issue was to be amicably solved, they allowed to give 100,000 Rwf. But when Maniraroro Jean de Dieu found that such an insurance policy was unfair he chose to sue Rwanda Rudniki Ltd, as the employer, who had a duty to make sure that mine concession does not cause any accident. [12] He also that the Insurance policy that Rwanda Rudniki Ltd signed with SANLAM AG Plc is unfair, and that it only binds those who contracted it. He therefore prays the Court of Appeal to

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hold that it is Rwanda Rudniki Ltd who is liable for the payment of damages from their mine- related accidents since they contracted for un unfair risk insurance policy. [13] Rwanda Rudniki representative argues that damages are normally charged for wrong doing. He adds that for anyone to start a business of mine extraction, they must first fulfil all the related requirements, and that Rwanda Rudniki Ltd has fulfilled all the requirements and that there was not anything lest they could do to stop the mine from collapsing on Manirarora Jean de Dieu. He also adds that the fact that Rwanda Rudniki Ltd contracted an insurance policy with SANLAM AG Plc (the former CORAR AG Ltd), was for the Insurer to pay for an eventual accidents related damages, and the policy was for the benefit of all the employees with Manirarora Jean de included. [14] He also adds that article 260 of Civil code book III could only apply if Rwanda Rudniki Ltd had not contracted for the risk insurance policy. He therefore argues that it is SANLAM AG Plc, the insurer, who is to pay for the claimed indemnity. He explains that the accident occurred when Rwanda Rudniki Ltd had already contracted an insurance agreement with SANLAM AG Plc, he therefore argues that it is the insurer who was supposed to be sued, more so that Manirarora Jean de Dieu, had actually approached them first, and more so that Rwanda Rudniki Ltd did not even know whether the insurer declined to pay for the claimed indemnity. [15] SANLAM AG Plc representative argues that since Manirarora Jean de Dieu, the victim, has never sued SANLAM AG Plc, he sees no reason as to why SANLAM AG Plc should be charged for the requested damages. He however adds that in case the Court finds it otherwise and holds SANLAM AG Plc for the payment, the requested damages should be paid as per the existing agreement between SANLAM AG Ltd and Rwanda Rudniki Ltd. DETERMINATION OF THE COURT [16] 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 judgmenton grounds of being vitiated by injustice, it examines the merits of the case anew and in the presence of all parties” [17] Article 258 of Civil code book III that was in force in 2015 when Manirarora Jean de Dieu had the accident provides the following “ Tort brings liability and binds the liable person for the payment of the related damages” [18] Paragraph one of article 260 of the above mentioned Civil Code book III provides that “ Tort liability does not always result from the person’s own fault, it can as well result from the third party’s faults for whom a person has an obligation of management and stewardship” [19] The case file indicates that Manirarora Jean de Dieu was working for Rwanda Rudiniki Ltd, a company that traded in extraction of Coltan minerals, he worked in Bukina mine concession located in Jabiro Village, Musongati Cell, Nyarusange Sector of Muhanga District in the Southern Province. The case contains details indicating that on the 29/10/2015 at around 9:00 am, Manirarora Jean de Dieu had an accident while working in the above mentioned mine, where it collapsed on him and it broke him the leg and he sustained an injury on one side of the head. The

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file again contains a related medical report indicating that the accident left him with 40% of body permanent incapacity. [20] With the above, the file contains an insurance policy : 220/00013216-SG of 16/04/2015 concluded between Rwanda Rudniki Ltd and CORAR AG Ltd, which later changed to be SAHAM Assurance Rwanda Ltd, and currently known as SANLAM AG Ltd. The above insurance policy agreement allows 1,000,000 Rwf to indemnify any employee who sustains the body permanent incapacity from mine work-related accidents. [21] For this case, Manirarora Jean de Dieu sued Rwanda Rudniki Ltd, and wants them to give him damages due to mine work related accident that he sustained when he was working for the company, and which left him with 40% of body permanent incapacity. One of the issues for analysis here is to determine whether Rwanda Rudniki Ltd is liable for the payment of claimed damages. [22] When the Court read both articles 258 and 260 of Civil code book III that then was in force when Manirarora Jean de Dieu sustained the accident, the Court found that any tort that causes damages to another person’s interest call for a liability and a subsequent damage repair, and the Court has again found that tort liability does not always result for the person’s own fault, as it can as well result from torts committed by third parties for whom a person has a duty of management and custody. The analysis of article 260 makes it clear that a custodian has a legal duty of supervision over the objects or subjects that are under his/her custodianship, and this places them in a situation of liability to third parties irrespective of whether they, themselves have or have not committed any tort. The above article was meant to cater for damage repair, and intended to avoid any situation of damage-related void liability. [23] This is corroborated by legal scholars that include Philipe Le Tourneau who commented about civil liability resulting for torts committed by objects that are under one’s responsibility ( responsabilité du fais des choses) legal scholars wondered if there is any way a custodian can distance him/herself away from the liability of torts committed by their objects/ subjects, and they found that there no way a custodian can separate him/herself from torts committed by objects/subjects under his/her custodianship, neither can a custodian claim to have thereof committed no fault, nor can he/she claim to have done all their best to avoid any wrong. The scholars continue to say that the obligation of damage-repair goes to the person who deliberately chose to utilise a certain tool and for a certain profit. [24] Some other law experts that include François Terré, Philippe Smeler and Yves Lequette concurred to say that a related case law precedent asserts the obligation of supervision over an object/subject comes with the right to use, to inspect and to manage it. They also add it is this very obligation of supervision that actually confers the really ownership over an object, adding that it is actually normal that the obligation of custody goes to the owner of an object/subject1.

1 « (..) la jurisprudence a fixé, puis retenu de manière constante, en dépit de quelques variantes, une définition en vertu de laquelle la garde est caractérisée par l’usage, le contrôle et la direction de la chose. La responsabilité est, dans cette mesure, attachée à l’autorité. De cette formule qui tend à définir un certain corpus, on doit, en premier lieu, déduire que la garde coincidera très souvent avec le droit réel de propriété. Leur parenté est d’ailleurs si naturelle que le propriétaire est présumé gardien de la chose. (..)», voir François Terré, Philippe Smelter na Yves Lequette, Droit civil. Les obligations, 11ème édition, Paris, Dalloz, 2013, p.253

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[25] Some other scholars concur to believe in the principle by which any property whether movable or immovable, material or immaterial, in use or at rest, defected or not can be a source of a liability. They say that even properties that show no sign of defection can be a source of tort liability. They say that it is actually a not so hard to determine the custodian of a certain property since it is quite often either the owner of the object or the person who possessed it by the time of the concerned accident.2 [26] The Court found that Rwanda Rudniki Ltd acknowledges the ownership of the Coltan mine concession that collapsed on Manirarora Jean de Dieu on the 29/10/2015, whereby it injured him and left his body with 40% of permanent incapacity. Being the owner of the concerned mine concession at the time of the accident, and exploiting it for a profit indicates that it is Rwanda Rudniki Ltd that was managing the concession, and it is therefore the very company that is liable for the payment of the mine-related damages. [27] The Court found that the fact that Manirarora Jean de Dieu was working in the mine concession that belongs to Rwanda Rudniki Ltd, whereby he had work related accident which left his body with 40% of permanent incapacity, gives him a right to sue them for damage-repair not only as the owners of the mine concession but also as the employer whose duty was to watch the mine and ovoid any eventual damage. And for Manirarora Jean de Dieu who chose to sue Rwanda Rudniki Ltd for payment of the sustained damages, the Court found no wrong. [28] With regard to a defence that Rwanda Rudniki Ltd representative submitted arguing that Rwanda Rudniki Ltd did no wrong that can make them be charged for damages, adding that the company had nothing to do that could have avoided the accident, the Court held the above defence void moving that tort liability does not always originate for one’s fault just as it has been explained by the above mentioned law experts such as Tourneau et al. reminding that damage liability can as well results from torts committed by objects/subjects that are under a person’s custodianship. Arguing that a custodian has no way of distancing him/her from a liability resulting from torts committed by their objects, neither can they claim to have committed no fault, nor can they can claim to have done their best to avoid any wrong. [29] The Court found that the submissions by Rwanda Rudniki Ltd by which he argues that the Company had an insurance policy with SANLAM AG Plc ( the former CORAR AG Ltd) for the sake of payment for accident related damages, and the argument by which he submits that article 260 of Civil book III could only apply if Rwanda Rudniki Ltd had not contracted for risk insurance, moving that it is SANLAM AG Plc, the insurer, who is liable for payment of the requested damages; the Court found the above defence pointless moving that the insurance policy does not free Rwanda Rudniki Ltd for the concerned tort liability; However, the Court has added that in case Rwanda Rudniki Ltd is charged with damages that outweigh the insurance policy agreement, they always reserve a right to request the insure to help pay part of the damages but in limits of their insurance agreement. As for Manirarora Jean de Dieu who chose not to sue the insurer (action

2 « Par principe, toute chose peut être source de responsabilité, qu'elle soit meuble ou immeuble, matérielle ou immatérielle, en mouvement ou inerte, viciée ou non. Dès lors, même les choses ne présentant aucune dangerosité entrent dans le champ d'application de la responsabilité du fait des choses. Le plus souvent, l’identification du gardien ne pose ne pose aucune difficulté, il s’agit à la fois du propriétaire (qui détient l’usus, le fructus et l’abusus) et du détenteur de la chose lors de la réalisation du dommage.», https://jurislogic.fr/responsabilite-fait-des-choses-article , 20/05/2022.

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directe) but sued Rwanda Rudniki Ltd, the employer (action personnele), the Court thereof found no wrong, since the plaintiff had a right to make a choice. [30] With all the above provided explanations, the Court found that Manirarora Jean de Dieu did no wrong in suing Rwanda Rudniki Ltd for payment of damages that resulted from their mine- related accident. The Court therefore held that it is Rwanda Rudiniki Ltd that is liable to indemnify Manirarora Jean de Dieu for the accident that he sustained from their mine concession. 2. Determination of a base for the computation of the damages that Manirarora Jean de Dieu has requested for. [31] The Counsel who represents Manirarora Jean de Dieu in this case raises a concern over the lack of an existing law that can swiftly apply to the computation of damages resulting from mine- work related accidents. He therefore requested the Court to refer to sub-paragraph one of article 9 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure which stipulates that : «a judge adjudicates a case on the basis of relevant rules of law. In the absence of such rules, the judge adjudicates according to the rules that he/she would establish if he/she had to act as legislator, relying on precedents, customs, general principles of law and doctrine.” [32] He also suggests that the Court can as well refer the above damage computation to the Presidential Order n0 31/01 of 25/08/2003 establishing a procedure for the compensation to victims of motor vehicles related accidents, he so suggested with an argument that whether a person survived an accident by a motor vehicle, or whether one sustained the accident from a mining concession, both are the accidents, and both the victims are equally humans. He more so wanted the Court to refer to the above mentioned Presidential order, since the Supreme Court so did in a similar case no RADA 0054/12/CS of 19/12/2014 with Kayijuka v. the Government of Rwanda whereby the Court set a precedent clarifying that if a victim happens to sustain an invalidity resulting from an accident other than road-related accidents, the damages for such a victim can be computed with reference to the above mentioned Presidential order n0 31/01 of 25/08/2003. [33] He again submits that it still the very Presidential order that Muhanga Intermediate Court referred to for case RC 00006/2017/TGI/MHG, a reference that Nyanza High Court Chamber rejected, since it instead referred to a relegated set of standards but which are provided by some other publications yet these publications were neither laws nor regulations but the Court has unfairly taken them for laws. He adds that not only the above publications have never featured any State Official Gazette, their own contents are so contradictory that they cannot serve for a credible reference. [34] Rwanda Rudniki Ltd representative argues that there was not any other law for reference except the sole regulations relating to extractions of mines and quarries in Rwanda and this had to be coupled with a set of measures of security and safety as per the regulations of Rwanda Mines, Petroleum and Gas Board. And he requested the Court to examine the merit of the argument by which the complainant claims that such regulations never featured the Official Gazzete.

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[35] He also added that in case the Court opts not to refer to the existing regulations that govern Mines and Quarry in Rwanda, the Court of Appeal must set a precedent that would serve for a reference over cases relating to mine-work accidents, adding that the argument by the representative of Manararora Jean de Dieu of relating this case to the cited Presidential order makes no sense since such reference would simply bring in a loose interpretation (Interprétation par analogie). He as well argued that the above mentioned case RADA 0054/12/CS rendered by the Supreme Court cannot serve a reference for this situation, he said that the above case gave a precedent for only a medical practitioner who is exercising his/her medical profession ; and he instead suggested that in case this Court finds the ruling of Nyanza High Court Chamber unfit, this Court should act as a legislator and set a fitting precedent. [36] SANLAM AG Plc representative argues that the above mentioned Presidential order cannot serve a reference for this case ; since the concerned accident is not road-related, he again argues that neither the above mentioned Rwanda Mines, Petroleum and Gas regulations fit since they have never been published in the State Official Gazette ; he moves that it now this Court that should set an adequate precedent. DETERMINATION OF THE COURT [37] Article 9 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure provides the following : “a judge adjudicates a case on the basis of relevant rules of law. In the absence of such rules, the judge adjudicates according to the rules that he/she would establish if he/she had to act as legislator, relying on precedents, customs, general principles of law and doctrine.” [38] The case file contains the ruling of case RC 00006/2017/TGI/MHG rendered by Muhanga Intermediate Court. This Court held that the Presidential Order is not fit to serve a reference for this case owing to a fact that Manirarora Jean de Dieu did not suffer from a motor vehicle accident. He is a victim of mine work accident while working Rwanda Rudniki Ltd, a mining company, that was not precautious enough to avoid the accident to befall on their employee. The Court held that the related damages shall be computed with reference to article 260 of a law of 30 July 1888 instituting the Civil Code Book III, but the Court specified that a certain formula from the above mentioned Presidential order, should be used for the computation of the required damages. The Court added such a method of damage computation was set as a precedent by the Supreme Court in a certain case between Kabayijuka and the Government of Rwanda heard on the 19/12/2014, whereby the Court allowed Kabayijuka 4,099.607 Rwf for the incurred economic loss, 432,000 Rwf for moral damage, 432,000 Rwf for body physical distortion, and 540,000 Rwf for loss of current and future employment. [39] The ruling of Nyanza High Court Chamber on case RCA 00104/2017/HC/NYZ of 10/07/2017 indicates that the court referred the computation of the damages on a set of guiding standard security and safety measures for extraction of mines and quarries as compiled by Rwanda Mines, Petroleum and Gaza Board, done in Kigali in the month of November 2017. Sub-paragraph (J) of page 13 reads as follows “the insurance policy for all the employees pays a compensation that amounts to 2,000,000 for an employee who sustained a permanent incapacity and 1,500,000 Rwf for an employee who dies thereof, added to a prior payment for all the related expenses”; the

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Court therefore held to allow Maniragaba Jean de Dieu 2,000,000 Rwf for he survived an accident with left his body with 40% of a permanent incapacity. The court has as well allowed him refund for all the related medical bills and the incurred case related expenses. [40] The court found no law that pertains to mine-work related accidents and for this matter, it referred to article 9 of the above mentioned Law n0 22/2018 of 29/04/2018 which stipulates that in the absence of the applicable rules, the judge adjudicates according to the rules that he/she would establish if he/she had to act as legislator, relying on precedents, customs, general principles of law and doctrine. The Court has therefore held to base the computation of damages that Manirarora Jean de Dieu requests for on the general principles that govern the liability that results from torts committed by objects/subjects that are under one’s responsibility. (Responsabilité du fait des choses) [41] The Court found that the request by Manirarora Jean de Dieu who submits that due to lack of a law that applies to mine-work accidents, damages that the victim claims for should be computed with reference to the Presidential order n0 31/01 of 25/08/2003 establishing mechanisms for compensation to victims of motor vehicles related accidents, arguing that both are the accidents and victims are equally humans, the Court found the above argument pointless, more so that the Presidential itself is clear and it solely caters for motor vehicle related accidents, and that is far different for the situation of Manirarora Jean de Dieu who sustained his accident from a mine concession . The Court has therefore held not to refer to the above Presidential order due to a deference of the litigation matter at hand. It held to move that any special decree, or special law has to serve the purpose of its own particularity. And that any other situation that lacks applicable rules, should be handled with reference to the existing principles or any other general legislations. [42] With regard to the argument by the representative of Manirarora Jean de Dieu who insists that one of the reasons that made them to suggest a reference to the above mentioned Presidential Order is prompted by a certain similar case n0 RADA 0054/12/CS rendered by the Supreme Court on 19/12/2014 whereby this Court set a related precedent, and it moved that damages resulting from non-motor vehicle related accidents should be determined with reference to the said Presidential order, This Court has found the above argument pointless, since for the above cited case, the Supreme Court referred to a certain formula found in the Presidential Order for the computation of the economic loss allowable to Kabayijuka Gaspard, but the Court has never said to have referred to that Order, neither did it set such a precedent by which the computation of damages resulting from non-motor vehicle accidents should always refer to the very formula as it features in the above mentioned Presidential order n0 31/01. The Court has never set such a precedent. Apparently, and due to the issues that the Court was examining, it found it appropriate to refer to the provisions of the above Presidential order, but it never set it to be a precedent for the subsequent similar issues. And this court therefore found nothing that might make it to refer to the above cited case no RADA 0054/12/CS. [43] With regard to whether Nyanza High Court Chamber was to refer its ruling on a set of standard mine and quarry mining security and safety measures, compiled by Rwanda Mines, Petroleum and Gas Board, done in Kigali in November 2017, and which Nyanza High Court Chamber took for regulations, this Court has deemed important to assess and determine whether such mining security and safety measures can really qualify to be in lieu of the applicable regulations.

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[44] Act that was enacted and signed by a competent authority with an aim of implementing a given law (règlement d’application), but regulations can as well on their own, with no law to inforce (règlement autonome). Gérard Cornu, another law expert defined regulations as a general act that was enacted and signed by a competent authority with an aim of enforcing a given law or with a purpose of regulating some other aspects that are not governed by any other law. Regulations must be published under the State Official Gazette. [45] Since the above compilation of the standard mining security and safety measures that Nyanza High Court Chamber referred to for the computation of damages it allotted to Manirarora Jean de Dieu lacked the important requirements, such having been signed by a competent authority, or having been published in the State Office Gazette, it is quite obvious that Nyanza High Court Chamber was not supposed to make it a reference for the computation of the damages for Manirarora Jean de Dieu since such a compilation is not legally binding. 3. Determination of possible damages, their computation and the liable person. [46] The representative of Manirarora Jean de Dieu argues that the possible damages should be determined in reference to the 15, 000 Rwf that Manirarora Jean de Dieu was earning each day. He reminded that when Rwanda Rudiniki Managing Director was answering question 12 of his interrogation, he replied that mine workers earn in proportion to their work productivity, but they cannot earn less than 12,000 Rwf/ Kg, while for question 13 when asked about individual mine work productivity per a person, he replied that a team of 8 workers can produce 12 kilograms per a day, and which translates into 1,500 Frw daily pay per a worker. And therefore the concludes that this is the very amount that can serve a reference for the computation of damages, [47] He also argues that the computation of the indemnity for the economic loss should not be referred to the normal Minimum wages index (SMIG) and he requested base the computation of the above damages on the 15,000 Rw, indicating that with this amount, the economic loss for Manirarora Jean de Dieu should be computed as (15,000 Rwf ×12 × 30 × 36 × 40%) /1 + (8% × 36) = 20,041, 237 Rwf. [48] Rwanda Rudiniki Ltd representatives explains that the routine practice in the mining work is structured in such a way that miners earn as per their productivity, and that at times, a miner works but goes home unpaid if he got no minerals to submit ; he therefore argues that basing the computation of the requested damages is wrong since Manirarora Jean de Dieu has nothing to prove that he would regularly earn the 15,000 Rwf per a day. When asked about referring the computation on the 3,000 Rwf, the Minimum wages Index (SMIG) that was once fixed by the Supreme Court, he replied that such a reference is as well not fit, since there is nothing that proves that Manirarora Jean de Dieu would regulary earn this amount per a day. [49] SANLAM AG Plc representative argues that since they have never been a party to this case, as the claimant has from all along never sued them since he had nothing to sue them for but he chose to sue Rwanda Rudniki Ltd, he therefore argues that he sees no reasons at to why SANLAM AG Plc should be charged for the above damages. He however submits that in case the court finds it otherwise and establishes that SANLAM AG Plc ought to pay for any due, he suggests that SANLAM AG Plc should ordered to pay the due in the limits of the agreement it

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signed with Rwanda Rudniki Ltd, and that is 1,000,000 Rwf ×40% and with the Counsel fee exclusive. DETERMINATION OF THE COURT [50] Paragraph one of article 260 of Civil Code book III that was in force in 2015 when Manirarora Jean de Dieu had the accident provides the following : “Tort liability does not always result from the person’s own fault, it can as well result from the third party’s faults for whom a person has an obligation of management and stewardship” [51] The case file contains a medical certificate of 14/05/2016 that indicates that the body of Manirarora Jean de Dieu has a permanent incapacity of 40%. The very file contains a birth certificate and a photocopy of the National Identity card that indicate that Manirarora Jean de Dieu was born on 01/01/1986. The file again contains statements from Rwanda Investigation Bureau (RIB) indicating that Manirarora Jean de Dieu sustained an accident on the 29/10/2015 while working in Rwanda Rudniki Ltd’ mine concession, and that by the time of the accident he was 29 years old. The case file again contains an insurance policy n0 220/00013216-SG of 16/04/2015 that Rwanda Rudniki Ltd had concluded with the then CORAR AG Ltd, the current SANLAM AG Ltd, a policy by which they agreed that a worker who gets mine work related accident and sustains 100% of body incapacity, the insurer will pay 1,000,000 Rwf for indemnity, and that for other percentages of incapacity, the victim will be indemnified in the right proportion of the sustained incapacity. [52] As it has been above highlighted, both the previous courts found no law that applies to the computation of compensations to the victims of mine work related accidents, and that is why Muhanga Intermediate Court chose to referred to article 260 of Civil Code book III, but computated the compensation with a reference to a formula that resembles the one found in the Presidential Order, yet this order is meant for the computation of compensations for victims of motor vehicle related accidents. Whereas Nyanza High Court Chamber, referred the damage- computation on a set a standard security and safety measures that govern mines and quarry concessions as compiled by Rwanda Mines, Petroleum and Gas Board. [53] Just as it has been above mentioned, the Court found no existing law applies to the computation of compensation for victims of mine work-related accidents, and for that reason, the Court held to refer to article 9 of the above mentioned law n0 22/2018, and moved to hold that Manirarora Jean de Dieu deserves indemnity for moral damages, and a compensation for the economic loss resulting from an accident that he sustained from Rwanda Rudniki mining concession and which left him with 40% of body permanent incapacity. [54] The Court found that Manirarora Jean de Dieu deserves an indemnity that can be determined at the court’s discretion, just as it has always be the case for the medical-related accidents that this Court has so far heard; and these included case RCAA 00073/2018/CA of 19/07/2019 with Nyirabatesi Laurence v. King Faisal Hospital, paragraph 37; whereby this Court, and in its own discretion, having established that the Hospital did some wrong, allowed Nyirabatesi Lawrence 28,000,000 Rwf for moral compensation. This is also what happened in case RCAA 00008/2020/CA of 25/06/2021 with Ndiziye Alphonse v. Kibungo Medical Centre, whereby this Court held to stay the claimed indemnity as it had has discretionally been pronounced by Ngoma

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Intermediate Court, and thus holding to quash the ruling of Rwamagana High Court Chamber, as the latter referred the claimed indemnity of the Presidential Order n0 31/01/ of 25/08/2003, underscoring that Rwamagana High Court Chamber based their ruling on an empty law since this Presidential order had nothing to do with the subject matter at hand; and the Court therefore ordered Kibungo Medical Center to give 35,000,000 Rwf3 to Ndizeye Alphonse as an indemnity for and in name of his child Irasubiza Amani. [55] The Court found that Manirarora Jean de Dieu sustained an accident while working in Rwanda Rudniki mining concessions, and the accident left him with 40% of body permanent incapacity ; and the Court understands that this accident caused a moral damage, and the court allowed him 500,000 for related moral damage compensation. [56] With regard to the economic loss, the Court found that Manirarora Jean de Dieu still deserves a compensation that has to be determined in the court’s own discretion and the limits of the sustained incapacity with a reference to his remaining employability period before he reaches 65 (the retirement age). For the indemnity computation formula, the Court held to use a certain formula that it once used in case n0 RADA 0054/12/CS with Kabayijuka Gaspard v. Nyarubuye Health Centre, whereby the Court took the victim’s monthly salary and multiplied it with the 12 months of the year, and this product was again multiplied by the victim’s incapacity percentage, and again multiplied with the victim’s remaining employability period and the whole was divided by a hundred.4 [57] For the computation of the economic loss that Manirarora Jean de Dieu incurred, the Court held not to base on the 15,000 Rwf that the victim’ s representative brought forth as the victim’s daily earning citing a statement that Rwanda Rudniki Ltd Managing Director submitted before the prosecution; The court held not to base on the above amount moving that the victim has no proof to convince the court that he was regularly earning the claimed amount, since it is clear that there were mixed probabilities that he could or could not earn a daily pay of 15,000 Rwf as he claims. And that is why the Court held to base the claimed damage computation on the Minimum Salary Wage index as it was once set by the Supreme Court in the ruling of case RCAA 0049/14/CS with SORAS AG Ltd v. Umuhoza Pacifique et al.5 The Court has therefore and in its own discretion held not to move that Manirarora Jean de Dieu was a regular worker, but since the file indicates that he was employed , and that by the time the accident he had a family and two children he catered for, the Court has discretionally approximated that he worked three (3) days a week which translates into twelve (12) days a month. [58] For the above reasons, the Court held to allow Manirarora Jean de Dieu an economic loss that is computed as follows : 3000 Rwf (the minimum wage index) ×12 (days that could work per a month) ×40 (the percentage of his incapacity) × 36 ( his remaining employability age for him to turn 65) : 100 = 6,220,800 Rwf.

3 See paragraphs 36 and 46 of case RCAA 00008/2020/CA of 25/06/2021 with Ndizeye Aplonse v. Kibungo medical Centre together with Prime Insurance Company Plc. 4 See paragraph 31 of case RADA 0054 /12/CS with Kabayijuka Gaspard v. the Government of Rwanda (on the behalf of its Ministry of Health) rendered by the Supreme Court on the 19/12/2014. 5 See paragraph 28 of case RCAA 0049/14/CS with SORAS AG Ltd v. Umuhoza Pacific rendered by the Supreme Court on the 25/11/2014.

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[59] With regard to the expenses that Manirarora Jean de Dieu incurred on medical bills, The Court held to stay the 100,000 Rwf that was previously pronounced by Nyanza High Court Chamber; more so that this is the very amount that features in the insurance contract of that Rwanda Rudniki Ltd had concluded with SANLAM AG Ltd (the former CORAR AG Ltd) on the 16/04/20156. And this Court moves to stay the very amount for this case. [60] The court found that it is Rwanda Rudniki Ltd who is liable for the payment of all the damages that Manirarora Jean de Dieu is claiming for, with SANLAM AG Ltd ( the former CORAR AG Ltd), their insurer, contributing for the payment but with the limits and terms of their insurance agreement whereby they agreed for a payment of 1,000,000 Rwf for a worker who happens to sustain 100% of body permanent incapacity, and for a proportional payment for a miner who sustains less than 100% of body permanent incapacity, just as it is outlined in the insurance policy n0: 220/00013216-SG that both parties have entered into on the 16/04/20157. The Court therefore finds that that Manirarora Jean de Dieu has sustained 40% of body permanent incapacity, and that SANLAM AG Ltd ought to pay 1,000,000 Rwf × 40% = 400,000 Rwf plus a medical bill of 100,000 Rwf just as per the terms of the agreement. This is exactly what this Court did for the ruling of the above mentioned case RCAA 00008/2020/CA where the Court ordered Kibungo Medical Centre, represented by Dr. Kanimba Pierre Celestin to team up with Prime Insurance Company Plc, their insurer, and pay for the claimed damage compensation as per their agreement as contained in the Insurance policy n0 413/00021583-SG concluded on the 26/06/2016 with the insurer contributing in proportion and limits of the insurance agreement.8 4 Whether the compensation for this case related expenses is worthy claiming. [61] The representative of Manirarora Jean de Dieu referred to article 111 of the above mentioned law n0 22/2018 of 29/04/2018 and prayed the Court of Appeal to order Rwanda Rudniki Ltd to give Manirarira Jean de Dieu 2,500,000 Rwf for the Counsel fee and 500,000 Rwf for case- related costs, arguing that hired lawyers and court bailiffs for this case. He as well prayed the Court to be refunded with the court fee that they paid at this level together with the 75,000 Rwf court fee they paid to the High Court for the review of this very case. [62] SANLAM AG Plc submits that Rwanda Rudniki Ltd was well aware that SANLAM AG Plc has all along never been a party in this case, and they have unnecessarily made the Insurer to intervene into this case, and he prayed the Court to order Rwanda Rudniki Ltd to pay SANLAM AG Plc 500,000 Rwf for the Counsel fee. [63] Rwanda Rudniki Ltd representative argues that Manirarora Jean de Dieu deserves no compensation since it is him who faulted the suing procedure. He also added that damages SANLAM AG Plc requested for are not justified since SANLAM AG Plc is the insurer for the concerned accident.

6 See the Insurance agreement, Policy: 220/00012216-SG of 16/04/2015 concluded between Rwanda Rudniki Ltd and SANLAM AG Ltd, check the tables and find about: Medical bills ( frais médicaux) 7 Check the tables of the above mentioned agreement and find about: Accident related incapacity and find about the paragraph that has this wording: En cas d’invalidité permanente partielle (I.P.P), l’indemnité de l’invalidité permanente totale est réductible dans les proportions prévues à l’article 18 des condtions générales 8 See paragraph 36 of case RCAA 00008/2020/CA

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[64] He also adds that Rwanda Rudniki prays the Court of Appeal to order Manirarora Jean de Dieu to pay them 2,000,0000 Rwf as the Counsel fee at this level of case appeal, and 1,000,000 Rwf for Counsel fee for both the previous instances, and he requested 2,500,000 Rwf for case- related expenses. [65] Manirarora Jean de Dieu’s representative rebutted the damages that Rwanda Rudniki Ltd requested for, arguing that this case was from all along triggered by an accident that occurred from their mining concession due to lack of proper mining security and safety measures. DETERMINATION OF THE COURT [66] Article 111 of the above mentioned law n0 22/2018 of 29/04/2018 provides the following : “the claim 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” [67] Paragraph one of article 26 of the Regulations n0 01/2014 establishing the scale of Advocates’ fees provides the following: “the Advocate for the applicant who has prepared the file and drafted documents may claim a base fee ranging from 500,000 RWF to 5,000,000 FRW, to which shall be added, in the event of recovery whether doing it directly or indirectly through his/her Agent, an additional fee for recovery determined according to the percentages set up in point II of Article 23” [68] The Court finds that Manirarora Jean de Dieu deserves compensation for both the Counsel fee and the incurred case-related expenses. But since he cannot account for all the compensation he has requested for, the Court has discretionarily awarded him 1,000,000 Rwf for Counsel fee at all the instances and 500,000 Rwf for the incurred case-related expenses at all the levels, which brings the total sum to 1,500,000 Rwf, and it is to be paid by Rwanda Rudniki Ltd. [69] The Court found that Rwanda Rudniki Ltd deserves no compensation neither for the Counsel fee nor for the incurred case-related expenses since their arguments for defence are found pointless. [70] The Court found damages that SANLAM AG Plc charges Rwanda Rudniki Ltd unworthy ; moving, just as it has been mentioned above that SANLAM AG Plc insured Rwanda Rudniki for the risks, and the latter did no wrong to have SANLAM AG Plc, as their risk insurer, intervening in the case. III DECISION OF THE CASE [71] Holds that the application for injustice-related review of case RCA 00104/2017/HC/NYZ rendered by Nyanza High Court Chamber on the 10/07/2018 has merit in part. [72] Holds to radically change the ruling of case RCA 00104/2017/HC/NYZ rendered by Nyanza High Court Chamber on the 10/07/2018.

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[73] Orders Rwanda Rudniki Ltd to give Manirarora Jean de Dieu 6,220,800 Rwf for the incurred economic loss, 500,000Rwf for the undergone moral damage and 100,000 Rwf for the medical bills, and the total sum comes to 6,820,800 Rwf whereby SANLAM AG Plc will co-pay 400,000 for the insurance indemnity and the 100,000 Rwf for medical bills refund as per the terms of the above mentioned insurance agreement that CORAR AG Ltd, the now SANLAM AG Plc had concluded with Rwanda Rudniki Ltd. This means that Rwanda Rudniki Ltd will pay the final sum of 6,320.800 Rwf, while SANLAM AG Plc will have to pay a total sum of 500,000Rwf. [74] Orders Rwanda Rudniki Ltd to give Manirarora Jean de Dieu 1,000,000 Rwf for the Counsel fee and 500,000 Rwf for the incurred case-related expenses, which sums up to 1,500,000 Rwf. [75] Rules that the Court fees stay consigned with the State treasury.