MUNYABURANGA v ECOBANK Plc (the former BCDI)

# MUNYABURANGA v ECOBANK Plc (the former BCDI)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2022-07-15 - Case/document no.: RS/REV/RCOM 00001/2022 - Collection: Supreme Court

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MUNYABURANGA v ECOBANK Plc (the former BCDI) [Rwanda SUPREME COURT – RS/REV/RCOM 00001/2022 (Mukamulisa, PJ, Cyanzayire and Kalimunda, J.) July 15, 2022] Commercial Procedure – Delays limits for application for case review – Illness that can be invoked as a serious unpredictable event that might lead to the extension of the appeal time – Limits – An illness that can only be invoked as a serious unpredictable event that might lead to the extension of the appeal time limits is such an illness that puts a person in particular conditions that disable his/her capacity of thoughts, speech, hearing and writing or make them fall so unconscious that they may not even manage to delegate an attorney for their cause. Facts: ECOBANK Plc (the former BCDI) sued Munyaburanga Jean Damascène in the court for a debt he owed them; he lost the case and the Court ordered him to pay 40,217,971 Frw to BCDI. Following that ruling, Munyaburanga Jean Damascène filed a claim to the Prosecution accusing Mr. Mudenge Didace, the Court’s bailiff, for documents’ forgery. He reported the forgery of the document of 02/08/2018 that summoned him for the hearing of 18/12/2001 before Kigali Intermediate Court. The case got recorded as RP 0772/10/TGI/ NYAGE and it was heard on 13/01/2012 with ECOBANK Plc, the former BCDI forced to intervene while Mudenge Didace was in absentia. The Court convicted Mudenge to the offence documents forgery and sentenced him to 5 years of imprisonment with a fine of 50,000 Frw. The Court has as well ordered ECOBANK Plc Jean Damascène to pay Munyaburanga Jean Damascène 500,000 for the undergone damages. ECOBANK Plc appealed the above ruling to the High Court. The case was heard on 13/01/2014 and it was pronounced on the 07/02/2014 and the Court admitted the merit of ECOBANK’s appeal and held that the appealed judgement changes solely on the issue of the damages that ECOBANK Plc ought to pay, and the Court therefore revoked them. On 7/12/2021, Munyaburanga Jean Damascène lodged an application to the Supreme Court praying to have case RCOMAA 0006/07/CS reviewed; and backed his application by some criminal verdicts that confirmed the forgery of documents that were used to summon him to Kigali Intermediate Court for a hearing over a debt he owed BCDI. The case was thereby registered as RS/REV/RCOM 00001/2022/SC. The Court first examined the objection related to appeal delays limits raised by ECOBANK Plc. The defendant referred to article 171 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, and said that the application for case review lapses within two months; however, paragraph 2 of the very article provides that the time limits for such an application remain imprescriptible for sole incapable persons. They also remind that the evidence with which he backs his application is a certain court judgement of 07/02/2014; this means that he was to file his application as soon as he leant of the above judgement and he was not to exceed 06/ 04/2014. Considering that he did not observe the above time- limits, his application should not be admitted. The person who sought for the case review argued that yes the evidence brought forth for the case review is the verdict of 07/02/2014 by the High Court, but he explained that the delay owed to a mental illness that struck him shortly after the pronouncement of the verdict till up to 03/11/2021

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as it is evidenced by a report of some medical doctors who attended to him. He therefore submits that he was thereby incapable to lodge a related application in a two-month time-limit Held: 1 For an illness be invoked as a serious unpredictable event that might lead to the extension of the appeal time limits is such an illness that puts a person in particular conditions that disable his/her capacity of thoughts, speech, hearing and writing or make them fall so unconscious that they may not even manage to delegate an attorney for their cause. 2. An illness of diabetes can only be invoked as a serious unpredictable event that might lead to the extension of the appeal time-limits if such an illness puts a person in particular conditions that disable his/her capacity of thoughts, speech, hearing and writing or make them fall so unconscious that they may not even manage to delegate an attorney for their cause. The application for case review did not meet time-limits for appeal. Statutes and statutory instruments referred to: Law no 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, articles 171 and 278; Law no 32/2016 of 28/08/2016 governing to persons and family, articles 113 and 150. No cases referred to. Judgment I. BACKGROUND OF THE CASE

On the 08/08/1996, Munyaburanga Jean Damascène contracted a loan of 10,000,000 Frw by BCDI for the loan to be invested into his business. For the loan security, he mortgaged his house located in Kimihurura in the plot number 1089, and he topped it up with his business stock and the total security stood at 20, 000,000 Frw; and the loan was to be fully repaid by 13/08/1997. On the 31/01/1997 he again contracted another loan of 30,000,000 Frw meant to help him complete his flat house under construction located in Remera-Nyarutarama, in the plot n0 5435; and as a security he mortgaged that very house plus his business stock, and the total security amounted to 60,000,000 Frw; and this loan was to be fully repaid by 31/01/2000.

Munyaburanga Jean Damascène did not repay the loan as per the agreement and this made BCDI to write a notice notifying to make the full repayment of the loan, and the last notice was served on 03/09/1998. On the 16/04/1999, parties agreed to combine the two debts and the total debt debt to repay amounted to 30,686,465 Frw meant to be fully repaid within 60 months starting from 10/05/1999.

On the 24/08/1999, BCDI wrote a letter to Munyaburanga Jean Damascène requesting him to repay the debt as they had agreed, and they requested him to pay the related arrears as well. On 31/07/2001 BCDI instituted a case before Kigali Intermediate Court, claiming that Munyaburanga failed to abide by the agreement; the case was recorded as RC 35,782/01 and it was heard in public

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on 16/01/2002 with Munyaburanga Jean Damascène in absentia. The Court held that he lost the case and ordered him to pay BCDI 40,217,971 Frw for the total outstanding debt.

Munyaburanga Jean Damascène appealed the above ruling before Kigali High Court, and the case was registered as RCA 13,859/KIG. But owing to the then judicial reforms, the case was later on sent to the High Court of the Republic and it was registered as RCOMA 0018/05/KIG; the case was heard on 28/09/2007 with BCDI in absentia, and the Court held that the appeal by Munyaburanga Jean Damascène has no justification and moved that the appealed judgement remains unchanged.

Munyaburanga Jean Damascène again appealed to the Supreme Court, the case was recorded as RCOMAA 0006/07/CS and it was heard on 19/06/2009. The Court held that the appeal by Munyaburanga Jean Damascène lacks merit, and moved that the ruling of appealed judgement remains intact.

Following the adjudication of the loan case, Munyaburanga Jean Damascène instituted a claim before the Investigation Bureau and accused Mudenge Didace, the Court’s bailiff, for the offence of documents forgery. He reports the forgery of the document of 02/12/2001 that summoned him for the hearing of 18/12/2001 before Kigali Intermediate Court, and that was the document that made him to be tried in absentia. The case was registered as RP 0772/10/TGI/ NYGE and it was heard on 13/01/2012 with Mudende Didance in absentia while ECOBANK Plc was thereby forced to intervene. The Court convicted Mudenge Didance to the offence of forgery and sentenced him to 5 years of imprisonment and a fine of 50,000 Frw; the Court has as well ordered ECOBANK Plc to give Munyaburanga Jean Damascène 50,000 Frw for the undergone damages.

ECOBANK Plc appealed the above ruling and the appeal was registered as RPA 0196/12/KIG and it was heard on 13/01/2014 with Mudenge Didace still in absentia yet he had been legally summoned. The case was pronounced on 07/02/2014 and the Court held the appeal by ECOBANK Plc has merit, and moved that the appealed judgement changes on the sale issue of damages that ECOBANK Plc ought to pay and the Court thereby revoked them.

On 07/12/2021, Munyaburanga Jean Damascène applied to the Supreme Court and prayed to have the case RCOMAA 0006/07/CS reviewed. And he backed his application by some criminal verdicts that confirmed the forgery of documents that were used to summon him to Kigali Intermediate Court for a hearing over a debt he owed BCDI. The case was thereby registered as RS/REV/RCOM 00001/2022/SC.

The hearing was scheduled on 24/05/2022 and it was conducted in public with Munyaburanga Jean Damascène assisted by Counsel Murutasibe Joseph while ECOBANK Plc was represented by Counsel Nsengiyumva François. The Court had to first examine the objection of delay limits raised by ECOBANK Plc. After the Court has thereof heard from each party, it informed litigants that the decision on the raised objection will be pronounced on 15/07/2022. II. ISSUES OF THE CASE AND THEIR ANALYSIS

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1. Whether the claim by Munyaburanga Jean Damascène seeking for review of case RCOMAA 0006/07/CS of 19/06/2009 by the Supreme Court has been filed within the time-limits provided by the law.

In their submissions to the Court, Counsel Nsengiyumva François and Counsel Mukakabanda Athanasie representing ECOBANK Plc refer to article 171 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure which states that the time-limits for applying for case review is within a two months’ period. However, paragraph 2 of the very article, the said time-limit does not apply to persons in the status of incapacity. They also remind that the evidence with which he backs his application is a certain court judgement of 07/02/2014; this means that he was to file his application as soon as he leant of the above judgement and he was not to exceed 06/ 04/2014. Considering that he did not observe the above time- limits, his application cannot be admitted for examination since he did not abide by the law provisions.

With regards to the three medical reports that Munyaburanga Jean Damascène filed in the system to prove of his sickness serves him nothing since none of the State certified medical doctor has ever proved that he suffered from such an illness from 06/04/2014. They even add that for the two State certified medical doctors that Munyaburanga Jean Damascène brings forth, none has ever testified that he has ever suffered from a mental illness; as the first was Doctor Gasangwa who, on 22/03/2021 issued him a certificate testifying that from 14/05/2015 he suffered from diabetes. The second is Kagame Abel, an internist of internal medicine in CHUK, who, on 20/04/2021 issued him a certificate testifying that from 2000 he had an incurable disease, yet for all this, he had been ably attending and handling related criminal cases.

With regard to the third certificate of 03/11/2021 apparently issued from Karagwe in Tanzania, Counsel Nsengiyumva François together with Counsel Mukakabanda Athanasie argue that this certicate should get no consideration since it did not emanate from a medical doctor. Counsel Nsengiyumva François adds that Munyaburanga Jean Damascène cannot account for his itinerary neither can he provide a medical transfer that took to Tanzania for treatment. They even argue that those who issued him with this certificate are not competent to do so since they are just mere medical assistants with no authority to issue a certificate testifying that a person suffers from a mental illness; he backed his arguments by personal research he conducted on google.

Counsel Nsengiyumva François has also added that Munyaburanga Jean Damascène should not invoke diabetes and relate it to article 278 of the law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure1 since diabetes is not an illness that would prevent a person from filing a claim, more so that he is currently and ably attending the present pleadings with a lot of ease.

In their submission to the Court, Munyaburanga Jean Damascène together with his legal counsel argued that though the evidence brought forth for the case review is the verdict of the case number RP 0772/10/TGI/NYGE coupled with the ruling of case RPA 0196/12/HC/KIG of 07/02/2014 by the High Court, he explained that from since the pronouncement of the verdict he

1 If a party delays in complying with time limits of appeal procedures due to exceptional reasons that are beyond his/her control, the time limit for filing the appeal is extended until such reasons cease to exist.

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had a problem of a mental illness that discomforted him till up to 03/11/2021 just as it is evidenced by medical reports issued to him from the Republic of Tanzania by doctors who attended to him. They alleged that, for the two months that followed the pronouncement of this judgement for which he seeks a review, he was incapable of initiating a lawsuit; they therefore request not to apply the related appeal time-limits just as per the provisions of article 171, paragraph 2 of the law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure.2

In the course of the hearing, they provided the following submissions:  Munyaburanga Jean Damascène lived in Tanzania running a business since 2003 until he fell sick, that is why he should not be asked about a related medical transfer. They also added that he even has a passport and possesses an air ticket that he travelled with and he even bought there a piece of land.  With reference to article 278 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, the two months period that followed the pronouncement of the verdict on the criminal case, should not apply since he immediately fell ill.  A medical certificate by Dr. Kagame Abel shows that since the year 2000 he suffers from diabetes, an incurable disease that causes him periods of disequilibrium, which means that he had a health incapacity.  A medical certificate issued by Dr. Gasangwa shows that he suffers from the sickness of diabetes since 2015, and this is a sickness that can healthy incapacitate to the extent of making unable to initiate a lawsuit.  A medical certificate by Nyakahanga Hospital that shows that from 2014, he suffers from a sickness that healthily makes him unable to reason. He did not have a mental illness as ECOBANK’s representatives seemed to insinuate, he simply had no capacity to undertake initiatives on his own.  With regard to the concern to a certificate by Nyakahanga Hospital which is said to have been issued by a mere Medical officer, and not a doctor, they called it a common practice in Tanzania, that a Medical officer is actually a Doctor, and a medical certificate does not necessarily bear the name of the issuer.  Concerning the failure to apply in due time yet the peremptory criminal verdict brought forth in evidence convicted Mudenge didace in 2012, they explained that such delay was due to a factor that ECOBANK Plc had as well appealed, and they could not attack a judgement that is yet not in force.

Paragraph one of article 171 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure provides that the time limit within which to apply for review is two (2) months starting from the date of the discovery of the fact giving rise to the review. Paragraph 2 of the very article provides that the above time limit does not apply to persons declared incapable to sue in court during the period of their incapacity

2 This time limit does not apply to persons declared incapable to sue in court during the period of their incapacity.

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Article 278 of the above mentioned law provides that when a party delays in complying with time limits of appeal procedures due to exceptional reasons that are beyond his/her control, the time limit for filing the appeal is extended until such reasons cease to exist.

The Court finds the judicial incapacity spoken about in paragraph 2 of article 171 of the Law n0 22/2018 of 29/04/2018 as an incapacity that subsequently comes to befall a person who had already pleaded the case that seeks for a review. It is obvious that had the incapacity came around earlier, a person would not have been able to litigate the initial pleadings without the help of a guardian, and if that was the case, the latter would be better positioned to continue the litigation till all the appeal remedies are exhausted.

The Court has also found a complementarity between paragraph 2 of article 171 relating the application for case review and article 278 that relates to the appeal remedies since the incapacity to initiate a claim can be one of the exceptional reasons that can be beyond of the person’s control.

No article of the Law relating to civil, commercial, labour and administrative procedure defines persons with incapacity of suing but various articles of the Law n0 32/2016 of 28/08/2016 governing persons and family define persons with incapacity to exercise their civil rights, and the capacity of suing inclusive. Article 1133 of the above mentioned law recognises civil majority at 18 years of age, and it is by that age, a person is fully qualified for all acts involving civil life in relation to other people. This means that below the above age, a person has no civil capacity, unless when he/she is emancipated as article 1164 of the very Law so provides.

In the same line of argument, article 150 of the Law n0 32/2016 of 28/08/2016 provides that the competent court declares legally incapacitated an adult with mental disability and appoint a guardian for that adult when the latter lives in a habitual state of mental deficiency even if such deficiency shows lucid intervals. The guardianship highlighted in article 199 is meant to help a minor or an adult with mental disability to enjoy rights generally recognized for every person and ensure administration of his/her property, if any.

Looking at the provisions of the Law n0 32/2016 of 28/08/2016, persons with capacity of suing are minors who have not yet attained the majority age, and who have not been emancipated and adults with mental disabilities.

During the hearing of 24/05/2022, Munyaburanga Jean Damascène admitted before the court that he suffers no mental illness (and this contradicts the content of his submissions), and this therefore excludes him from persons with no capacity to sue described under paragraph one of article 171 of the above mentioned Law n0 22/2018 of 29/04/2018, in limits of the details provided by the Law n0 32/2016 of 28/08/2016 that governs persons and family.

He says that he had a sickness of which he presented three medical certificates issued some medic, and adds that this very sickness prevented for initiate the claim. The issue is now to ascertain whether the invoked sickness can be considered as a serious unpredictable event that

3 The age of majority is eighteen (18) years, unless provided otherwise by this Law or other law. A person having attained that age, is fully qualified for all acts involving civil life 4 An emancipated minor is capable of all acts of civil life unless otherwise provided for by the law.

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could prevent him from initiating a lawsuit so to rhyme with the provisions of article 278 of the above highlighted Law n0 22/2018 of 29/04/2018.

The medical certificate of 03/11/2021 issued from Nyakahanga D.D Hospital of Karagwe in Tanzania by a certain Medical officer shaws that Munyaburanga Jean Damascène suffered from a mental illness from 2014, and he from since has been put on regular medications by hospitals. It also reads in times of his crisis, he experienced speech and hearing difficulties but now he has therefrom recovered5. Munyaburanga Jean Damascène disclosed before the Court that the sickness he had was diabetes, and it is this sickness that deprived him of his reasoning capacity and therefore prevented him from initiating the lawsuit.

Another document is a certificate of 22/03/2022 issued by Dr. Gasigwa, a medic at Kacyiru Hospital, which testifies that Munyaburanga Jean Damascène is under medication from 14/05/2015 in the said Hospital due to the illness of diabetes. There is also another certificate issued by Dr. Kagame Abel, serving at CHUK, the certificate indicates that Munyaburanga Jean Damascène is under treatment for an incurable disease from 2000, it also reads he experiences periods of disease related disequilibrium. Munyaburanga Jean Damascène together with his legal counsel advance the aforementioned disequilibrium is a health incapacity that is due to the sickness of diabetes.

Looking at the details of these medical certificates and coming back to the submissions by Munyaburanga Jean Damascène, it is this very sickness of diabetes that he has from 2000 that prevented him from filing his application in the due time-limits.

The sickness of diabetes is not a sickness that would place a person under the health incapacity that is highlighted under paragraph 2 of article 171 of the above mentioned law n0 22/2018 of 29/04/2018 since such a disease does not cause a mental illness, just as Munyaburanga Jean Damascène himself admitted that he has never had any mental disability.

And, for an illness of diabetes to be considered as a serious unpredictable event that falls in the limits of article 278 of the above mentioned Law n0 22/2018 of 29/04/2018, to the extent of justifying the extension of appeal delays-limits, it has to be putting a person into particular health conditions that deprive him/her of their capacity of thoughts, speech, hearing and writing or make them fall so unconscious that they may not even manage to delegate an attorney for their cause; and this would rhyme well with what the laws of New South Wales call incommunicate person6

5 A client that had mental problems from the year 2014 on regular medication from hospitals up to date and now is improving, once on attack had difficult in hearing and speaking with difficulties, now slight improved. Need special consideration 6 Section 3 of the CPA defines a person under a legal incapacity as: any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981 and, in particular, includes: (a) a child under the age of 18 years, and (b) an involuntary patient or forensic patient within the meaning of the Mental Health Act 2007, and (c) a person under guardianship within the meaning of the Guardianship Act 1987, and (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs; Civil

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The Court found that the certificates presented by Munyaburanga Jean Damascène do not read of him to have been lived in the above described unconscious health conditions. The Certificate issued by Dr Gasangwa reads that the claimant suffers from diabetes since 2014 yet the verdict that he brings forth for an evidence was decided in 2014, this certificate therefore serves him no use. The certificate issued by Dr. Kagame Abel indicates that he suffers from an incurable disease (a disease the claimant disclosed before the Court to be diabetes) and that he has it from 2000, adding that it causes him intermittent disequilibrium

From 2000, Munyaburanga Jean Damascène has been litigating in various cases that included case RC 35,782/01 of 16/01/2002, case RCOMA 0018/05/KIG of 28/09/2007, case RCOMAA 0006/07/CS of 19/06/2009, case RP 0772/10/TGI/NYGE of 13/01/2012 and case RPA 0196/12/HC/KIG of 07/02/2014; this mean that having managed to battle all the above cases he could therefore not fail to file his application for the intended case review. Concerning the sickness related moments of disequilibrium, though he did not thereby give a thorough explanation, he did not report it to be a permanent health crisis that struck him from 2014, the year of his verdict- evidence till the time he lodged the related application.

The certificate by a Medical officer issued from Nyakahanga D.D. Hospital in Karagwe does not indicate the name of the issuer, and this made it impossible for the Court to establish the competence of the issuer. In addition to that, it indicates that he had mental problems that at times dysfunction his speech and hearing ability, and this is different from what Munyaburanga Jean Damascène has submitted before the Court as he disclosed that he has never suffered from any mental illness. He instead submitted that the sickness that is reported on the medical certificates it is an illness of diabetes of which he even took treatment from Rwanda. As it is above explained, this sickness was not to prevent him from initiating his claim, or mandate a lawyer to do it on his behalf just as he had been doing it for all other cases he litigated before yet sick.

Considering all the above provided elucidations, the Court moves not to admit neither to examine the claim by Munyaneza Jean Damascène that sought for a review of case n0 RCOMMA 0006/07/CS of 19/06/2009 by the Supreme Court since he did not abide by the legally prescribed appeal delays-limits 2. Determination of related eventual damages.

Munyaburanga Jean Damascène together with Counsel Murutasibe Joseph, his legal advisor asked for 10,000,000 Frw for damages due to deprivation of the right on his property for so many years since he was deprived of his property he got a psychological trauma that brought him various sickness that included a mental problem. He also requested for 5,000,000 Frw for the Counsel fee and 1,000,000 for the incurred court’s procedural expenses.

Counsel Nsengiyumva Francois together with Counsel Mukakabanda Athanasie representing ECOBANK Plc argue that the damages requested by Munyaburanga Jean Damascène have no justification since the case resulted from his failure to repay the debt as per the agreement. They instead lamented that he dragged ECOBANK Plc into unnecessary lawsuits that made

Trials Bench Book — Procedure generally, last updated: CTBB 47, MAR 22, Judicial Commission of New South Wales, https://www.judcom.nsw.gov.au, accessed June 6, 2022

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ECOBANK Plc to hire a lawyer, and they requested the Court to order him pay 1,500,000 for the Counsel fee and 300,000 Frw for the case related costs. DETERMINATION OF THE COURT

The Court finds that Munyaburanga Jean Damascène deserves no damages whether for Counsel nor for case related expenses since he has lost the case.

The Court finds that ECOBANK Plc deserves damages for the Counsel fee and case related expenses, since they had to hire a lawyer and make a follow up on this case. The Court finds however that 1,500,000 Frw requested for is too much and they cannot account for it. They therefore do not deserve it all, and the Court in its own discretion awarded them 500,000 Frw for the Counsel fee and corroborated the 300,000 Frw for the incurred case related costs as the Court found it appropriate. III. DECISION OF THE COURT

Holds not to admit the application by Munyaburanga Jean Damascène seeking for a review of case RCOMAA 0006/07/CS of 19/06/2009 by the Supreme Court since the application did not abide by the legally acceptable appeal delays-limits;

Orders Munyaburanga Jean Damascène to give ECOBANK Plc 500,000 Frw for the Counsel fee and 300, 000 Frw for the incurred case related expenses.