MUREKATETE v. NAHO ET.AL

MUREKATETE v. NAHO ET.AL

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-06-24 - Case/document no.: RS/SPEC/ 0003/13/CS - Collection: Supreme Court

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MUREKATETE v. NAHO ET.AL [Rwanda SUPREME COURT – Nº RS/SPEC/ 0003/13/CS (Kayitesi Z., P.J., Gakwaya, and Mutashya, J.) 24 June 2016] Civil procedure – Preliminary objection of inadmissibility – Contradictions among the rendered judgments – The effect of a minor being represented by his/her parent in various cases and later his/her parent lodges a petition in his/her absentia requesting for solving of the contradictions among those judgments when the child has attained the majority age – For the minor being represented by his parent in courts of law and later the issue of contradiction among those judgments raised and consequently taken to courts of law , his parent can continue to represent him in his absentia even though he attained the majority age. Civil procedure – Preliminary objection of inadmissibility – Procedure for submission of a petition requesting to resolve the contradiction in the rendered – The party with the interest to institute the petition – A party the judgments which contains the contradictions is the one with the status to lodge the petition – Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 2. Facts: After the death of Semuhungu during the Genocide against the Tutsi there was numerous cases arising from the inheritance of the deceased’s estate. Among those cases some declared that he was a

bachelor while others declared that he was legally married, thus they were relied upon in various ways to determine his heir. Consequently, Murekatete representing her child lodged a petition in the Supreme Court claiming that there are judgments with contradictions, those declaring that Semuhungu was a bachelor while others declaring that he was legally married, others declaring that Rulisa is the one to inherit his late father’s estate and others declaring that he is not the only heir, so she prays the Court to resolve that contradictions. The representative of the heirs of Gasharazi (the siblings and the children who gave birth with Semuhungu) raised a preliminary objection of inadmissibility on the ground that Murekatete lacks the status and interest to lodge the petition because the child she was representing, who is Rulisa attained the majority age and she is supposed to lodge the petition herself and again Murekatete is not among the heirs of Semuhungu. In her defence, Murekatete argues that her petitioning the Court is not that she is only representing Rulisa in the case but she is also affected by the rendered judgments and moreover the child she is representing disappeared since 1994 and in that case when someone disappears his next of kin like his parents are the one to administer his estates, especially that the court held that he is the one to inherit his late

father’s estate but it is administered by his mother, hence she has an interest to lodge the petition. For Naho, he claims that he doesn’t see any contradictions in those judgments and the disappearance of Rulisa should be demonstrated by the judgment as a piece of evidence , thus he finds that Murekatete lacks the status to lodge a petition for resolving the contradictions in the judgments for he is not a party instead it’s her child who has already attained the majority age.

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Held: 1. For the minor being represented by his parent in courts of law and later the issue of contradiction among those judgments raises and consequently taken to courts of law, his parent can continue to represent him in his absentia even though he attained the majority age; therefore, Murekatete has the status to lodge a petition requesting to solve the contradiction in the judgment.

2. The party to the judgment which contains contradictions is the one who petitions the court requesting to solve, therefore Murekatete has the interest because she was a party to the judgments she petitions for solving the contradictions among them, either being sued on her own or in other suits suing representing her child. The preliminary objection is overruled. Court fees suspended. Statutes and statutory instruments referred to: Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 2. No cases referred to. Judgment I.BACKGROUND OF THE CASE [1] After the Genocide against the Tutsi, there was numerous cases relating to the succussesion of the late Semuhungu Faustin’s estate, suing his brother (Naho David) representing his mother Mukangwije, and sometimes suing on his own, and other times Mukamudenge, Gasengayire, Mwiririza, Murekatete, Mutesayire, Karikwera and Muyenzi, the siblings of the one whom they gave birth together but deceased also instituted the claim and among his chirden the one who sued was Murekatete Immaculée who was representing his remaing children Rulisa Shema Calvin. [2] Among those, some were stating that Semuhungu Faustin was a bachelor and others declaring that he were legally married, and were based on differently to determine the heir. Counsel Kazeneza Théophile representing Murekatete Immaculée,

argue that Semuhungu Faustin was never legally married, therefore there is contradiction among the judgment on that issue. Counsel Kazeneza Théophile lodged a claim in the Supreme Court praying the Supreme Court to make a ruling on those related judgments in accordance with the article 29 paragraph 12 of the Organic Law nº 03/2012 of 13/6/2012 determining the organization, functioning and jurisdiction of the Supreme Court , so that it can settle that contradictions, he demonstrated the contradictory judgments which state that Semuhungu Faustin was a bachelor and those that state that he was married , those stating that Rulisa Shema Calvin is the one to inherit the estate of his late father and those that state that he is not the only one to inherit him.

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[3] The hearing was held on 17/5/2016, Murekatete Immaculée assisted by Counsel Kazeneza Théophile tofether with Counsel Kayitare Serge, the heirs of Gasharazi Jennifer represented by Counsel Mugeni Anita, Naho David assisted by Counsel Bimenyimana Emmanuel. [4] Counsel Mugeni Anita raised a preliminary objection of inadmissibility of the claim lodged by Murekatete Immaculée on the ground that she lacks the status and interest in the case because the person she was representing, Rulisa Shema Calvin, now has attained the majority age (majeur) and he is the one who was supposed to lodge it in his names and Murekatete Immaculée is not among the heirs of Semuhungu Faustin, that is the objection which was examined. II. THE LEGAL ISSUE AND ITS ANALYSIS Whether Murekatete Immaculée has the status and interest to seize the court requesting to settle the issue of contradiction she claims to be in the rendered judgments.  [5] Counsel Mugeni Anita argues that the pleaded cases are based on the succession of Semuhungu Faustin, they begun Murekatete Immaculée representing his son called Rulisa Shema Calvin who was still a minor at that time, but when she checks his period of birth , she finds that he is nolonger a minor but has now attained the majority age ariko, as indicated in the rendered judgment , he was born on 06/05/1989, thus she finds that Murekatete Immaculée do not has the

status to ladge the claim on behalf of Rulisa Shema Calvin nor representing him in the case he still has the majority age depending on the date he was born . She further says that Murekatete Immaculée is not among the heirs of Semuhungu Faustin, thus she has no interest to lodge the claim. [6] Counsel Kazeneza Théophile adduce that this case has a special procedure ( procédure spéciale) which is provided by the Law regulating the Supreme Court, that it for Murekatete Immaculée to sue is not that she was representing Rulisa Shema Calvin in the case, but because those decided cases also affects her because in the beginning of those cases, Murekatete Immaculée instituted a paternity petition for that child (recherche de paternité), and after the succession cases followed ( succession),therefore she is affected by those judgments and apart from the fact that she is the one who pleaded them but also that child disappeared in 1994 and when someone disappears especially a child the next of kin like his parents are the ones who administer his or her estate. [7] He adds that if it comes to attention that the child died, its Murekatete Immaculée who has to inherit him for she has interest, and moreover the Court had held that its Rulisa Shema Calvin who has to inherit the whole estate of his father and be administerd by his mother on his behalf. [8] Counsel Kayitare Serge argue that the Supreme Court should give a legal guideline on that issue, because the law donot bar anyone from petitioning the court on the contradictory judgments if the petitioner has interst in those cases. Murekatete Immaculée has interest because she was a party in those cases.

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[9] Even though David says that in all cases the claimer is Murekatete Immaculee but this does not mean that she petitions in her child names. He adds that there is no contradiction in those judgements. [10] Counsel Bimenyimana Emmanuel argue that the disappearance of Rulisa Shema Calvin should have been indicated by the rendered judgment as an evidence, thus he is of the view that Murekatete Immaculée has no status to petition for the contradiction of the judgments because he is not a party to them instead it’s her child who has attained the majority age (majeur).

THE VIEW OF THE COURT [11] Article 2 of the Law nº 21/2012 of 14/06/2012 relating to civil, commercial, labour and administrative procedure provides that a claim cannot be accepted in court unless the plaintiff has the status, interest and capacity to bring the suit. [12] The Court finds that the petition requesting for the clarification on the judgments which contradicts each other do not require a special procedure part from the plaintiff fulfilling the requirement mentioned in the article above, that is to say he must have the status ,interest and capacity to lodge a suit. [13] The documents in the case file demonstrate that the cases pleaded by Murekatete Immaculée were pleaded in the name of her son Rulisa Shema Calvin who was still a minor before the age of 21, He attained the majority age when those judgments were no longer appealeable when they are binding, Murekatete Immaculée petitioned the Court requesting the court to clarify on the contradictions among the judgments when his son Rulisa Shema Calvin she was representing had attained the majority but as she explained his where about are unknown because she has not seen him again since 1994 [14] The Court finds that Murekatete Immaculée was a party to the judgments she petitions for solving the contradictions among them, being sued on her own and in other instances suing in representing her child, here we can

highlight judgment RC 17.825/92 rendered by the First Instance Court of Kigali on 17/6/1992 where Murekatete Immaculée instituted a paternity petition so that the son can be recognized by his father Semuhungu Faustin (recherche de partenité), judgment RC 23117/94/S1 rendered on 23/10/1997 by the First Instance Court of Kigali where Murekatete was claiming to inherit the estate of the late Semuhungu Faustin, in which Naho David lodged a voluntarily intervention, judgment RC 0049/06/TB/BSSAMANA rendered on 28/02/2007 by the Firs Instance Court of Busasamana where Murekatete Immaculée lodged a third party opposition against judgment RC 0062/05/TD/NYZA of the suit which was initiated by Muyenzi claiming that Semuhungu Faustin was legally married with Gasharazi Jennifer, judgment RPA 0826/06/HC/Kig rendered on 11/08/2008 by the High Court of the Republic were Murekatete Immaculée was a civil party in the criminal case where Naho David et.al was being prosecuted for forgery rising from the marriage certificate demonstrating that Semuhungu Faustin was legally married with Gasharazi Jennifer, and other judgments where manza Naho David sued Murekatete Immaculée requesting to inherit the estate of his brother Semuhungu Faustin and demonstrating that Rulisa Shema Calvin is not a child of Semuhungu Faustin.

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[15] The Court finds that in all those judgment, the rulings on Murekatete Immaculée, those courts considers her as representing his child Rulisa Shema Calvin is a heir to the estate of his father Semuhungu Faustin but represented by his parent because he was still a minor as held by the courts. [16] The Court finds that as a person who pleaded all those cases, being sued in her own name and in other instances suing or being sued as representing her child,and as a person who pleaded those cases in the interest of her minor child, nothing bars her to petition court requsting for the resolving contradictions that arise among judgment in the interest of her child Rulisa Shema Calvin even though he had attained the majority age but who has not yet appeared to confirm the acts of his parent during the period she had been representing him.

Regarding the interest in the petition requesting for resolving contradictions that arise among judgment, the Court is of the view that Murekatete Immaculée as aperson who was aparty to them as a defendant on her own and sometimes as a defendant representing her child Rulisa Shema Calvin who was still a minor as explained, in all those judgments courts made rulings, its obvious that when those rulings contradicts each to the extent that they render their execution impossible, the party in those cases is the one to petition for the solving of that contradictions. III. ICYEMEZO CY’URUKIKO [17] Holds that the preliminarily objection raised by Counsel Mugeni Anita is overruled; Holds that Murekatete Immaculée has the status and interest to petition the Court requesting it to resolve the contradictions that arise among judgment that he pleaded representing her child Rulisa Shema Calvin; [18] Orders that the case will proceed in merit on 20/09/2016; [19] Orders that the court fees are suspended.