MUKAMAZIMPAKA v. UNGUKA BANK Ltd

# MUKAMAZIMPAKA v. UNGUKA BANK Ltd

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-02-25 - Case/document no.: RCOMA 0038/14/HCC - Collection: Commercial High Court

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MUKAMAZIMPAKA v. UNGUKA BANK Ltd [Rwanda COMMERCIAL HIGH COURT – RCOMA 0038/14/HCC (Niwemugeni, P.J.) 25 February 2014] Commercial procedure –The loan contract – Making an agreement between the bank and the borrower of the loan aiming at easing the payment – Requesting for the intervention of the court – The court may base nowhere to order both parties for negotiation in case the one who requests it shows no will to her adverse party since the agreement is made on the will of the parties to the disputes. Contract Law – The loan contract – Paying the interests agreed up on in the contract – No party may claim for the discharge of interests agreed up in the contract in case she reveals no evidence for the difficulties she mentions to have prevented her from paying and she does not prove whether they were miscalculated –Law n°45/2011 of 25/11/2011 governing contracts, article 64. Facts: UNGUKA BANK Ltd made a contract loan for 10,000,000 Frw with Mukamazimpaka and her guarantor Niyibizi. Within that contract they agreed how the debt would be paid, the period for the payment and the interests to be paid. UNGUKA BANK Ltd has lodged a claim before Nyarugenge Commercial Court claiming that the borrowers of the loan do perform the contract it has made with them.The court decided that the claim of UNGUKA BANK Ltd has basis, and it condemned Mukamazimpaka to pay 7,824,892 Frw in case she fails, the payment will be made by Niyibizi. Mukamazimpaka appealed to the Commercial High Court saying that she denounces nothing against the appealed judgment but rather she got the difficulties which made her fail to pay, and she accepts to pay in amicable agreement, and she claims that she jointly with Niyibizi may pay. UNGUKA BANK Ltd said that that appeal is baseless, and it made a cross appeal claiming for the procedural and lawyer’s fees in the appeal instance. Mukamazimpaka argued that these damages may not be considered that they may increase the difficulties that even the payment was not yet found. Held: 1. Mukamazimpaka does not prove the difficulties she claims to have made her fail to pay. If there are, she could have negotiated with the lender; that the guarantor approved that she did not request it. The court may base nowhere to order both parties for the negotiation since the negotiation is made on the will of the parties to the disputes. 2. Claiming that the ordinary interests and those for delay may be dismissed may not be considered since both parties agreed up on it within the contract with Mukamazimpaka who does not prove that they were miscalculated. Appeal has no basis; Appealed judgment changes only with regard to the damages and the court fees; Court fees to the appellant;

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Statutes or statutory instruments referred to: Law n°45/2011 of 25/11/2011 governing contracts, article 64 No case referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] UNGUKA BANK Ltd made with Mukamazimpaka Spéciose a loan contract worth to 10,000,000 Frw on 12/07/2012. They have agreed on how the debt will be paid, the period for payment and how it will be paid and the interests which will be paid. Niyibizi Vincent guaranteed that loan. UNGUKA BANK Ltd lodged a claim before Nyarugenge Commercial Court against Mukamazimpaka and her guarantor Niyibizi, claiming that they pay the debt, and diverse interests since the contract was not performed. The case was heard in the default of the defendants since they did not appear before the court without any reason. The court decided that the claim has basis, and condemned Mukamazimpaka to pay 6,678,352 Frw for the principal debt, 145,138 Frw for the ordinary interests, 801,402 Frw for the interests for delay and 200,000 Fr for the procedural and lawyer’s fees, which all makes 7,824,892 Frw, and in case she fails to pay, the payment will be made byNiyibizi. [2] Mukamazimpaka appealed against that decision, within the submissions made by Me MunyanezaKaro Sylvan he revealed no denunciation against the first judgment, rather she said that she got difficulties which made her fail to pay. UNGUKA BANK Ltd argues that the appeal is baseless, and it made a cross appeal claiming to be paid 400,000 Frw for the procedural fees and 300,000 Frw for the lawyer’s fees in appeal instance. II. ANALYSIS OF LEGAL ISSUES The court is going to examine the content of Mukamazimpaka’s appeal, and examine the damages claimed by UNGUKA BANK Ltd in its cross appeal. 1. With regard to Mukamazimpaka’s appeal [3] The submissions made by Munyaneza Karo Sylvan, the counsel for Mukamazimpaka, said that Mukamazimpaka and Niyibizi got bankrupt within their commerce which made them fail to pay accordingly with the loan granted. And they lost their kid, in addition they have bought a car and it got an accident, therefore the money for the ordinary and delay interests they were condemned to pay may be dismissed. He also said that Mukamazimpaka agrees to pay the debt but she requests to negotiate with the bank and order Niyibizi jointly with her to pay the loan, moreover they requested it together and used it together however now they are divorced. Gahungu Etienne, the counsel for Mukamazimpaka was asked whether he has an addition to the

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submissions made by his colleague, he responded that not at all except that they have agreed that there may be negotiation that there is the will to pay. [4] Kampire Claudine, the counsel for UNGUKA BANK Ltd said that the ground raised by Mukamazimpaka are baseless since she agrees that she did not pay the loan granted, however the disasters she claims to have got may not be the basis since she did not approach the bank to negotiate it and see how to ease her to pay as she says. And claiming that the interests may be dismissed also has no basis since they are within the contract they have made. And what she claims for the negotiation may not be granted to her since she did not request it to the bank, while it granted her the loan and did not pay, and she was notified of that it went to sue her and she kept quiet and in the first instance she defaulted without any reason and the case was heard in her absence which demonstrates that she has no will to pay. While with regard to the fact that Niyonzima divorced with her wife does not discharge her from the obligations he had on the debt he guaranteed. [5] The court realises that what is said within Mukamazimpaka’s appeal may not be considered for the following grounds: she says that she failed to pay since she got bankrupt within his commerce, she lost a kid and the car they have bought got an accident, but she does not prove all those she raises. In addition if she got all difficulties she could have negotiated it with UNGUKA BANK Ltd how to ease her to pay, but also the one who assists her accepts that she did not request it. Therefore the court may base nowhere ordering that both parties to negotiate since the negotiation is made in the will of the parties to the dispute it is not ordered by the court in case it is seized with the dispute to decide it since the negotiation has failed. And in addition this is a subject matter not her in the first instance, it cannot be raised in appeal (art. 168 CPCCSA). [6] Others she has claimed of being discharged from the ordinary and delay interests may not be considered since both parties agreed on it with in the contract, and she does not prove that they were miscalculated. The contract has therefore, be respected as provided for by the article 64 of the law n° 45/2011 regulating the contract. While claiming that Niyonzima jointly with Mukamazimpaka may be held to pay the debt since they are divorced, the court realises that it cannot examine it since Niyonzima was not sued in the appeal, thus no decision may be taken against him in case he was heard, and thus the decision taken in the first instance has to remain effective. Except that the court realises that what is necessary is to respect the contract they made where Niyonzima guaranteed the debt, she may be held liable for his obligations as the guarantor. If they were divorced the court hearing the divorce case it is the one which will decide how they will share the assets and liabilities. 2. With regard to the damages claimed by UNGUKA BANK Ltd [7] The one representing UNGUKA BANK Ltd made a cross appeal claiming to be paid 400,000 Frw for the procedural fees and 300,000 Frw for the lawyer’s fees.

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[8] The one representing Mukamazimpaka argues that these damages may not be considered that they may increase the difficulties moreover that the payment was not yet found. [9] The court releases the fact that Mukamazimpaka lodged a claim for appeal, it made the bank look again for the lawyer to assist it and she has to be paid. Those procedural damages and lawyer’s fees it has claimed may be granted basing on the article 258 CCB III which states that “any act of an individual which causes damages to another it obliges the one whose act caused damage to repair it”. The court realises that those damages may be calculated together and to follow up the case and remunerating the lawyer be paid 300,000 Frw, moreover that the lawyer who is given the case is also the one who make its follow up and pleads it and he is paid for both. III. THE DECISION OF THE COURT [10] Declares that Mukamazimpaka’s appeal is baseless [11] Decides that the appealed judgment does not change except the damages for the lawyer’s fees amounting to 300,000 Frw which is added in appeal instance. [12] Holds that the judgment decided in the first instance remains effective and it has to be executed as it was decided. [13] Condemns Mukamazimpaka to pay to UNGUKA BANK Ltd 300,000 Frw for the procedural and lawyer’s fees in the appeal and to pay the court fees amounting to 8,800 Frw.