MUKESHIMANA EL AL v. Rwanda Social Security Board (RSSB)

MUKESHIMANA EL AL v. Rwanda Social Security Board (RSSB)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-09-16 - Case/document no.: RADA 0040/12/CS - Collection: Supreme Court

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MUKESHIMANA EL AL v. Rwanda Social Board (RSSB) [Rwanda SUPREME COURT – RADA 0040/12/CS (Mutashya, P.J., Gatete G and Gakwaya, J.) 16 September, 2014] Administrative procedure – Administrative appeal – Administrative appeal is done when a plaintiff claims for the annulations of an administrative decision so that he can regain the right he was deprived as a consequence of that decision – Law nº 18/2004 of 20/06/2004relating to the civil, commercial, labour and administrative procedure, article 339 . Administrative procedure – Whether the claim requesting for rectification and inclusion of the assets which were not evaluated during the expropriation due to public interest is subject to administrative appeal – Such a claim is not subject to administrative appeal because it is not a claim requesting for the cancellation of an administrative decision instead it regards the execution of that decision.. Administrative procedure – Appeal – Overruling the appealed decision – The Court with the jurisdiction to hear the case in merit – When the appeal court overrules the appealed judgement, that court shall hear the case in substance unless the overruling was done because there were irregularities in lodging the appeal or for lack of jurisdiction..– Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 171 Facts: Mukeshimana and

Uwayezu disagreed with RSSB regarding the evaluation of their property on the former land of Uwayezu during the expropriation due to public interest claiming that during the evaluation they agreed only on the four houses but they did not on the fifth one because there were some properties which had not been evaluated. Subsequently Mukeshimana and Uwayezu sued to the High Court claiming that the evaluation should be done correctly so that every property in that land be evaluated and that the value of the land and that of the plants be paid to Uwayezu separately. The Court rejected the claim on the ground that the decision by RSSB to expropriate them is an administrative decision which is subject to administrative appeal . The plaintiffs appealed in the Supreme Court claiming that they did not request to cancel an administrative decision because what they disapprove are the activities of the company Teledevelopment which was awarded the tender by the RSSB, therefore they are not requesting for the cancellation of the RSSB decision.. RSSB claims that Mukeshimana wrote to them a letter dated 13 December 2009 requesting for rectification and then on she sued after the six month provided in article 339 relating to the civil, commercial, labour and administrative procedure,, which was in force by then. Held: Administrative appeal is done when a plaintiff claims for the annulations of an administrative decision so that he can regain the right he was deprived as a consequence of that decision.

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When the appeal court overrules the appealed judgement, that court shall hear the case in substance unless the overruling was done because there were irregularities in lodging the appeal or for lack of jurisdiction A claim requesting for rectification and inclusion of the assets which were not evaluated during the expropriation due to public interest is not subject to administrative appeal because because it is not a claim requesting for the cancellation of an administrative decision instead it regards the execution of that decision. Appeal has merit. Appealed judgment over turned ; The hearing of the case in merit will commence; Court fees suspended. Statutes and statutory instruments referred to:: Law n 21/2012 of 14/6/2012 relating to the civil, commercial, labour and administrative ᵒ procedure article 171 Law nº 18/2004 of 20/06/2004 relating to the civil, commercial, labour and administrative procedure, article 339 Cases referred to: Judgment nº RADA 0041/11/CS between EWSA and NDAHAYO Jérémie, rendered by the Supreme Court on 13/09/2013

JUDGMENT 1. BACKGROUND OF THE CASE [1] This case orginates from misunderstanding between RSSB, Mukeshimana Alphonse and Uwayezu Venantie in relation to how the properties of Mukeshiimana Alphonse were evaluated for the purpose of expropriation for public interest, that land in the sector of Gacuriro was given to RSSB for building thereon houses in compliance with the master plan of the city of Kigali, those properties were on the land of Uwayezu Venantie. [2] Mukeshimana Alphonse asserts that in the valuation of his property, he only agreed with RSSB on the four houses in his plot but they did not agree on the fifth house as there are some properties which were not valuated yet they had to be. [3] Mukeshimana Alphonse and Uwayezu Vénantie seized the High Court requesting that the valuation of properties be well conducted and all activities in that plot be valued. In this case Umutesi Pelagie the wife of Mukeshimana Alphonse was forcibly intervened but she did not appear and the case was heard in her default. [4] The High Court held that the claim of Mukeshimana Alphonse and Uwayezu Venantie is rejected because the decision taken by RSSB to expropriate Mukeshimana Alphonse from the place he dwelt was an administrative decision and thus it was subject to administrative appeal.

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[5] Mukeshimana Alphonse and Uwayezu Vénantie appealed against that judgment before the Supreme Court asserting that the judge violated the provisions of article 339 of the law n o 18/2004 of 20/06/2004 relating to civil, commercial, labor and administrative procedure that was in force by the time the claim was instituted and the fact judge based on hearsay and held that the letter of 13/09/2009 aimed at recourse yet it aimed at the rectification of the property mis valued by the entrepreneur appointed by RSSB. [6] The case was heard on in public on 15/04/2014, Mukeshimana Alphonse was assisted by Me Mboniyamaye Elias who was also the counsel of Uwayezu Venantie and RSSB was represented by Mujawabega Yvonne. II. ANALYSIS OF THE LEGAL ISSUE [7] To know whether the claim relating to the rectification the valuation of properties and inclusion of properties that were nor valued was an expression decision of the administration that had to attacked in accordance with article 339 of the the law no 18/2004 of 20/06/2004 relating to civil, commercial, labor and administrative procedure that was in force by the time of its institution. [8] In the submissions of appeal before the Supreme Court, Counsel Mboniyamaye Elias the advocate for Mukeshimana Alphonse and Uwayezu Venantie asserts that the grounds of appeal of his clients was the fact that the judge disregarded the provisions of

article 339 of the aforementioned law since what they attacked were the acts of Teledevelopment that was awarded the tender by RSSB (former CSR) and there was no decision of RSSB they sought its annulment and the judge did not show the decision taken by RSSB that should have been appealed against and thus he based on a non-existing decision that he did not even indicate in the judgment he rendered. [9] Counsel Mboniyamaye Elias further asserts that the judge based on the words of Mukeshimana Alphonse only who confirms that his letter of 13/09/2009 was aimed at the an administrative appeal yet it aimed at requesting the rectification the acts of Teledevelopment that was awarded the tender by RSSB, he disregarded the letters written by RSSB one of 09/2009 where it stated that it sent the value of all properties to the district except those Mukeshimana Alphonse have not signed for and that of 2010 where they stated that they sent the value of all properties to the district yet Mukeshimana Alphonse had not signed yet, the latter contradicted the one RSSB (former CSR) wrote admitting it will wait until Mukeshimana Alphonse signed. [10] During the hearing, Mboniyamaye Elias the counsel for Mukeshimana Alphonse argue that the acts attacked by his clients were carried out by Teledevelopment that was hired by RSSB and thus were not an administrative decision and the acts of that company

did not raise dispute be it on part of RSSB or on part of Mukeshimana Alphonse and he further argued that when one carefully reads article 339 of the aforementioned law, finds that it provides for 8 months before the institution of the claim before and there are two months of waiting for the response and other six months for seizing courts, Mukeshimana Alphonse discharged his duties since he seized the Intermediate Court of Gasabo before the lapse of those months looking at the letter of institution of the claim.

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[11] Counsel Mboniyamaye Elias further argues that the fact that the procedure was not followed should not be the ground to prejudice his clients because they pursued the administrative appeal as they find that it an administrative decision taken by RSSB that expropriated the people. He further argues that the claim they instituted before the High Court was not new since the object matter was the same and the judge held that the request of Mukeshimana Alphonse and that of RSSB were not admitted as they could affect the substance of the case and he therefore held that he has no jurisdiction, thus Mukeshimana Alphonse could not make an administrative appeal again and what has to be examined is to know whether he did not make the administrative appeal and the law does not provided whether in case the claim is dismissed the plaintiff has to make an administrative appeal again. . [12] Mujawabega Yvonne the counsel for RSSB in rebutting the submissions of appeal of Mukeshimana Alphonse and Uwayezu Venantie, she asserts that the grounds of appeal of Mukeshimana Alphonse and Uwayezu Venantie are not founded since on 13/09/2009 Mukeshimana addressed a letter to RSSB (former CSR) requesting for rectification, RSSB did not reply to that letter and addressed a letter to the District requesting it to evaluate the properties that were not valued and then Mukeshimana Alphonse instituted the

claim after six months provided for by article 339 of the law relating to civil, commercial, labor and administrative procedure that was in force by the time the claim was instituted and thus his claim could not be admitted. [13] Counsel Mujawabega Yvonne further asserts that he instituted a claim before the Intermediate Court of Gasabo which was dismissed and he must not to confuse it with the one instituted before the High Court which was appealed against and it is the one that did not respect the timeframes provided for by the law. She asserts that with regard to the rectification requested by Mukeshimana Alphonse, all were valued and the compensation were sent to the District and he himself accepted the value and he no longer has interest in this case as provided under article 2 of the law No 21/2012 of 14/06/2012 relating to civil, commercial, labor and administrative procedure. That with regard to the prescription of lodging a claim, the date to be based in determining it is 18/10/2010 on which the day the High Court was seized.

COURT FINDINGS [14] Article 339 of the law No 18/2004 of 20/06/2004 relating to civil, commercial, labor and administrative procedure that was in force by the time the claim was instituted, which become article 336 of the law No 21/2012 of 14/06/202 relating to civil, commercial and administrative procedure provides that “The claim for annulment of an administrative decision is admissible when it relates to the decision of an administrative authority be it direct or indirect” and its second paragraph provides that “before instituting the claim, the person who attacks the administrative decision must first exert recourse before the administrative organ superior to the one that took the repugnant decision.” [15] Without prejudice to the provisions of that article, the Court finds that the administrative appeal is done when the plaintiff requests annulment of an administrative decision for him to regain his rights deprived of by that decision as held in the case º RADA 0041/11/CS rendered by the Supreme Court (EWSA v NDAHAYO Jérémie)

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[16] With regard to this case, documents pertaining to its indicate that Mukeshimana Alphonse and Uwayezu Venantie seized the High Court requesting for the rectification in terms of enforcement of the decision of their expropriation where they requested two things: Rectification and inclusion of what were not valued for the purpose of their expropriation and requesting the value of the land and plants be recorded on Uwayezu Venantie and be compensated for them separately. [17] The Court also finds that the letter of 13/09/2009 the High Court qualified as a letter for administrative appeal, Mukeshimana Alphonse wrote it to the Director of RSSB indicating the misunderstanding between him and her wife Umutesi Pélagie and thus requesting that she not be paid the proceeds of expropriation as he was in litigation with her before courts and another request in that letter was the rectification of files relating to valuation of properties to be compensated. [18] The Court finds that be it in the letter Mukeshimana Alphonse addressed to the Director of RSSB on 13/09/2009, be it in the letter instituting the claim before the High Court of 26/10/2010, there is no where Mukeshimana Alphonse and Uwayezu Venantie requested the annulment of an administrative decision to expropriate them so that they could regain their right over their property, but what they instead claimed relates to its

enforcement that contended that they were not satisfied with it, thus their claim should have been admitted as they were not required to exert recourses according to the provisions of article 339 of the aforementioned law. [19] Article 171 of the Law No 21/2012 of 14/06/2012 relating to civil, commercial, labor and administrative procedure provides that “When the appeal court overrules the appealed judgment, the court shall hear the case in substance unless the overruling was done because there were irregularities in lodging the appeal or for lack of jurisdiction [20] Basing on the provisions of article 171 mentioned in the preceding paragraph, the Court finds that this case must be heard in substance in accordance with the provisions of this article, thus the parties must be re summoned to argue on claim. III. COURT RULING [21] It holds that the appeal of Mukeshimana Alphonse and Uwayezu Venantie is founded; [22] It holds the the judgment nº RAD 0172/10/HC/KIG rendered on 29/06/2012 ruhindutse is changed in its entirety; [23] It holds that the hearing of this case in merits will be resumed on the date the parties will be notified by the registry; [24] It orders that the court fees are suspended.