MUSHENDIMU NSANZE v. MUNYARIBANJE KAVUNJA

# MUSHENDIMU NSANZE v. MUNYARIBANJE KAVUNJA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-04-11 - Case/document no.: RCOMA 0109/14/HCC - Collection: Commercial High Court

## Text

## Page 1

MUSHENDIMU NSANZE v. MUNYARIBANJE KAVUNJA [Rwanda COMMERCIAL HIGH COURT – RCOMA 0109/14/HCC (Niwemugeni, P.J., ) April 11, 2014] Contract law – The validity of the contract – The contract bind the parties who signed it – The contract is invalid if it does not bear the signature of one of the parties to it. The party to the case may not argue that the judge ignored the provisions of the contract if it was signed by other unknown people who do not have the letter authorizing them to sign on it. Contract law – The damages resulting from the breach of contract – The aggrieved party has right to damages from the party failing to perform his/her contractual obligations –The one of the parties to the contract cannot refuse to pay damages in case he/she does not respect what they have agreed in the contract, and causes to the other the crisis in his/her commerce and life, Law n° 45/2011 of 25/11/2011 governing contracts, article 137. Commercial procedure – The provisional execution of the judgment – The provisional execution order shall be issued if the matter of litigation is the debt acknowledged by the debtor in the case – The fact that the debtor in this case admits that she has to pay to the other party the money he owes to him, it is evident that he acknowledges that debt, the Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 212. Facts: Munyaribanje Kavunja agreed with Mushendimu Nsanze Edmond to perform the commerce of Libuyu lumbers from Congo. Munyaribanje deposited on Mushendimu’s bank account five thousand and five hundred dollars (5,500$) for the capital. He goes on saying that in the agreement they made, those dollars would buy 115 lumbers, one lumber reaches Kigali when it is at 28,000 Frw, and it’s sold at 32,000 Frw. When Mushendimu got that money he disappeared, and got unavailable, this made Munyaribanje to sue him before Musanze Commercial Court claiming that he may get back his money that he has given to him, the interests resulting from them and the damages. The court condemned Mushendimu to pay to him 5,500$ for the debt, 1,319,293 Frw for the damages and ordered the provisional execution of 5.475$. Mushendimu was not satisfied with the decision of the judgment, and appealed to the Commercial High Court arguing that the judge ignored the provisions of the deed of transfer which allowed Munyaribanje to get the woods he has bought, and ordered that he get back the dollars he has paid to buy them without having returned the woods; with this, Mushendimu argues that it is unjustified enrichment since Munyaribanje has not to take them both, that’s to mean the woods and the dollars. Munyaribanje says that that contract is called deed of transfer was not ignored, and requests that it may not be considered on the different grounds he has revealed in the case. Mushendimu goes on saying that no activity that generates interests has been started yet since nowhere both parties have agreed on the interests, and that Munyaribanje was given the woods but no interests have been born from them due to the war which occurred in Congo, and Munyaribanje failed to follow them up. This one says that the ground for Mushendimu’s appeal is baseless since the contract made between them is the commercial contract aiming at bearing

## Page 2

interests. He goes on saying that Mushendimu may base nowhere by saying that the money he was given has not started yet to generate interests because he has given to him 950,000 Frw for the interests not calculated with the capital. Mushendimu says that the court has willingly ignored the money he has given to Munyaribanje calling it the loan while it was not. He goes on saying that he has not to pay the damages since he played no role in causing the loss to Munyaribanje since he has given to him the woods he has sent him to bring. Munyaribanje as for him says that Mushendimu has to pay those damages because he did not respect the contract. With regard to the provisional execution of the judgment, Mushendimu says that the judge has based on the law which states that the provisional execution is issued it the matter of litigation is the debt acknowledged by the debtor in the case, while in this case the matter of the litigation is not the debt instead 5,500 $ that Munyaribanje has deposited it on Mushendimu’s account as the capital. Munyaribanje as for him says that the judge violated no law since Mushendimu admits that he owes that money. In the cross appeal made by Munyaribanje claims that the interests may not be calculated on 18% instead they have to be calculated on 4,000 Frw per each lumber for all time they would have supplied, as long as Mushendimu has nolonger restituted to him his capital, and given him with all 19,130,000 Frw for interests. Held: 1. The fact that Mushendimu reveals for the first time the contract he calls transfer when he is sued, he may not say that that contract binds Munyaribanje since he did not sign on it or authorized someone to sign it on his behalf. 2. The fact that the one who received the money and the one who sent it have agreed that those dollars was for buying 115 lumbers, then after the one who had to buy them did not respect it, he has to pay the damages for non-performance of this contract. 3. Mushendimu admits that he owes the money to Munyaribanje; in addition to that he wrote to him admitting that he will pay him, Mushendimu has to restitute it during the provisional execution of the judgment ordered in this judgment. The appeal is admitted but it is baseless. The appellant lost and respondent won. Statutes and statutory instruments referred to: Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 212, Law n° 45/2011 of 25/11/2011 governing contracts, article 137. No Cases referred to:

## Page 3

Judgment I. BRIEF BACKGROUND OF THE CASE [1] Munyaribanje Kavunja Appolinaire says that he agreed with Mushendimu Nsanze Edmond that they work together in the commerce of Libuyu lumbers from Congo. He says that after agreeing he immediately deposited on the account of Mushendimu which is in Coopec La Bonne Moisson of Goma five thousand and five hundred dollars for the capital as he has requested him. He says that in the agreement they made those dollars would buy 115 lumbers, one lumber reaches Kigali when it is at 28,000 Frw (including the cost, transport and taxes), and it’s sold at 32,000 Frw in Gakinjiro. He goes on saying that after getting those dollars he kept quit, and when he looked after him he did not find him until he seized the one called SEKAGEME to mediate them but in vain. Munyaribanje sued him before Musanze Commercial Court claiming that he may get back his money, its interests and the damages. [2] Musanze Commercial Court condemned Mushendimu Nsanze Edmond to pay to Munyaribanje Kavunja Appolinaire 5,500$ for the debt and 1,319,293 for the interests 1,000,000 Frw for the damages and ordered the provisional execution on only 5,475$. Mushendimu was not satisfied with that decision, and appealed against it before the court on the grounds that the judge ignored the provisions of the deed of transfer which allowed Munyaribanje to get the woods he has bought, on the ground that the judge ignored that no activity generating interests has started yet; on the ground that the court has willingly ignored 9,500 $ that Munyaribanje also agrees that he has given it to him, on the ground that the court condemned him to pay the damages while he played no role in causing the loss to Munyaribanje; and on the fact that the provisional execution of the judgment was issued. In this case the court is going to analyse whether those grounds for appeal have basis and analyse the cross appeal made by Munyaribanje Kavunja Appolinaire. II. THE ANALYSIS OF THE LEGAL ISSUES OF THE CASE On the ground that the judge ignored provisions of the deed of transfer. [3] Mushendimu says that the judge ignored the provisions of the deed of transfer which allowed Munyaribanje Kavunja Appolinaire to get the woods he has bought, and order that he get back the dollars he has paid to buy them without having restituted them, which is «unjustified enrichment » since Munyaribanje has not to be given both, that is to mean the woods and the dollars. That he has to choose to get back the dollars he has given but also he has to make a deed of transfer on the woods he was given or remain with his woods and does not get back the money he has paid on them. [4] Munyaribanje Kavunja Appolinaire says that this deed of transfer was not ignored instead it was not considered as it is demonstrated in the paragraph 16 of the judgment appealed against. He says that that document has not to be considered since: * Munyaribanje did not take part in that transfer contract for him to sign it while it claimed to have been made for him. That instead it was signed by people whom he does not know and Mushendimu himself. For all of them none had his authorization to represent him therein.

## Page 4

* He says that it was not possible that he would pay 5,500$ and instead of giving to him the sale contract (acte de vente) and be called that he is given “transfer”. * He says again that it is not possible that if it was for him it could not be held by Mushendimu when they have met many times and he did not hand it to him nor told him about it, and instead reveals it before the court after two years when he is sued. That what Mushendimu says that Munyaribanje has the forest it is not true, that if that contract has existed, it does not bind Munyaribanje, that instead it binds the one who signed it. [5] As it is revealed by the deed of transfer mentioned in this case, Munyaribanje was given 32 woods composed of 12 of Muvula and 20 of Libuyu. In the court hearing of 11/03/2014, Mushendimu told to the court that one wood of Libuyu costs between 1,500 $ and 1,800 $, it means that the money he was given would buy only three woods of Libuyu instead of being 20. Another thing which is evident is that Mushindimu does not reveal the authorization he was given by Munyaribanje to buy for him the forest at the extent that even the sellers may base on it to give to him 32 woods he claims to have bought for him. It is not even clear how he could have bought the forest and he did not even inform the one he bought it for and give to him that deed of transfer and wait for revealing it only when he is sued. Basing on the article 14 of the law relating to evidence and its production provides for that: « a private deed is a text, which bears a signature or a thumbprint of one or several of the parties. Only the parties to the deed are bound by the agreements within » The court realises that this deed of transfer does not bind Munyaribanje since he did not sign or did send the one to sign on his behalf through the authorization. And even nowhere it is proven that he has sent someone to buy the forest for him since the agreement of both parties as they say it, is that wanted Libuyu lumbers. This ground for the appeal therefore has not to be considered. The ground for the appeal of the fact that the judge ignored that no activity generating the interests has started yet. [6] Mushendimu says that no activity generating the interests has started yet, and that nowhere both parties agreed on the interests that Mushendimu pay to him. And that from the time when he has given that money, he was given the woods from Muhindo Mutahwa to Munyaribanje, those woods did not bear interests due to the war in Congo, Mushendimu was jailed and even the fact that Munyaribanje had the part time job in Statiatics and failed to follow them up. [7] Munyaribanje as for him says that this ground for appeal has no basis since the contract made between them is the commercial contract and always it aims at bearing the interests. That this contract started to be performed when Munyaribanje has finished to perform his obligations, and give to Mushendimu 5,500$, which did not remain in the bank instead immediately went in the service it was reserved for. And that Mushendimu himself has given to Munyaribanje 950,000 Frw for the interests which are not calculated with the capital. That Mushendimu may base nowhere saying that this money was not given for bearing the interests.

## Page 5

1. On the ground for the appeal that the judge willingly ignored 950,000 Frw that Munyaribanje admits to have been given by Mushendimu. [8] Mushendimu says that the court ignored that money as it has never existed while both parties admit it though Munyaribanje calls it the interests while Mushendimu calls it the loan. During the hearing of 11/03/2014, Munyaribanje told to the court that 950,000 Frw which was sent by Mushendimu through Mobile Money was the interests he was giving to him since when they talked on phone he told him that the service went well. What Mushendimu says that it was a loan he gave to him, the court finds this not to be considered since he does not prove the reason why he has been giving it to him from 23/11/2011 until 10/02/2013 which is proven by the statement revealed by Munyaribanje before the court. On the ground for appeal regarding the damages [9] Mushendimu says that he played no role in causing the loss to Munyaribanje, he has not to pay the damages for it. That the judge ignores that he owes no debt to Munyaribanje, that the woods he has sent him to bring, he has bought them, what remains, is to generate interests income from them. And that the judge may base nowhere to condemn him to pay the damages amounting to 1,000,000 Frw. Munyaribanje as for him says that he deserves those damages due to the crisis he suffered from the non-performance of the contract be it in his economy and or in life. Basing on the article 137 of the Organic law governing the contract which provides for that: « the aggrieved party has right to damages from the party failing to perform his/her contractual obligations, unless the claim for damages has been suspended or withdrawn ». The ground for the appeal basing on the provisional execution decided by the court [10] Mushendimu says that the judge has based on the article 212 of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure in its article 22 which states that: « the provisional execution order shall be issued if the matter of litigation is the debt acknowledged by the debtor in the case ». That within this case the matter of the litigation is 5500$ that Munyaribanje has deposited on Mushendimu’s account as a capital, it is not the debt he has lent him on the extent that the judge may base on that article and provide the provisional execution while no debt has existed. Munyaribanje as for him says that the judge violated no law since until now Mushendimu admits that he owes those dollars to Munyaribanje as he says it in his court submissions of the appeal on the third page where he says that he is ready to hand the woods or the money amounting to 5475$ to Munyaribanje Appolinaire, this is in addition to the letter he wrote to Munyaribanje on 14/02/2013 admitting that he will pay to him his dollars. [11] Basing on this article 212 mentioned above, the court realises that Mushendimu does not deny that he has those dollars for Munyaribanje, more important that it was realized that it was given to him to buy for him Libuyu lumbers it was not to buy for him the forest, he has to restitute it during the provisional execution ordered by the court in the judgment appealed against.

## Page 6

On the cross appeal lodged by Munyaribanje Appolinaire [12] Munyaribanje Appolinaire claims that the interests may not be calculated on 18% that instead may be calculated on 4,000 Frw per each lumber for all time they would have supplied, as long as Mushendimu has no longer restituted to Munyaribanje his capital. That therefore, he has to pay to him 19,130,000 Frw. This court realises that Munyaribanje does not reveal substantially that this is the money that they would really gain, thus he has to be provided with that which was calculated in the judgment appealed against but calculated on the value of one dollar today at 687 Frw. Therefore he has to be provided with: [13] 5500$ x 687 x18 x2

/ 100 = 1.360.260 Frw as the interests he would have gained. While 400,000 Frw for the lawyer’s fees in appeal instance, the court realises that he may be provided with it as he has claimed it in its discretion. III. THE DECISION OF THE COURT The Commercial High Court: Decides to admit the appeal it was seized with by Mushendimu Nsanze Edmond and decides that it is baseless; Decides that Munyaribanje Kavunja Appolinaire wins, that Mushendimu Nsanze Edmond loses the case; Orders Mushendimu Nsanze Edmond to pay to Munyaribanje Kavunja Appoulinaire 1,360,260 Frw equal to the interests he would have gained calculated on 18%, and pays it to him within the period of 15 days after this judgment becomes executable, in case he fails it will be taken from his patrimony through the power of the state. Orders Mushendimu Nsanze Edmond to pay to Munyaribanje Kavunja Appolinaire 400,000 Frw which is equivalent to the lawyer’s fees at the appeal instance, and pays it to him within the period of 15 days after this judgment becomes executable, in case he fails it will be taken from his patrimony through the power of the state. Orders Mushendimu Nsanze Edmond to pay 9,700 Frw which is equivalent to what have been done in this case, and pays it to him within the period of 15 days after this judgment becomes executable, in case he fails it will be taken from his patrimony through the power of the state. It orders that for other grounds the decision of the court in the judgment 0459/13/TC/Mus rendered on 13/01/2013 by Musanze Commercial Court .