NATIONAL BANK OF RWANDA (BNR) v NGEZAHOGUHORA ET AL.

# NATIONAL BANK OF RWANDA (BNR) v NGEZAHOGUHORA ET AL.

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2022-07-22 - Case/document no.: RS/INJUST/RC 00002/2022/SC - Collection: Supreme Court

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NATIONAL BANK OF RWANDA (BNR) v NGEZAHOGUHORA ET AL. Rwanda SUPREME COURT-RS/INJUST/RC 00002/2022/SC (Nteziryayo P.J., Nyirinkwaya and Cyanzayire, J.) 22 July 2022. Civil procedure – Warranty against the dispossession of the purchased property – The seller shall warrant the buyer against the dispossession of the purchased property, or he/ she shall refund or request that the buyer is refunded by the one who dispossesses him/her of the purchased property. Furthermore, even in the absence of an explicit warranty clause, the seller shall always warrant the buyer against total or partial dispossession of the purchased property or the seller shall pay the debts on it not communicated to him/her by the time of sale in accordance with the third party’s right on the purchased item. Facts : Ngezahoguhora bought a plot of land from Rekeraho, but when he was about to start developing it, he received a letter from the local authorities halting him from proceeding and making him wait for the ruling on a certain case RC 157/09/TGI/NYGE pending between National Bank of Rwanda ( BNR) and Birikunzira, who also was claiming for the same plot, arguing that he as well bought it from BNR when he was still working for it, and when they fired him, they again sold the plot to Rekeraho was its employee. Ngezahoguhora lodged a case with the Intermediate Court of Nyarugenge and sued Ingabire, Rekeraho’s surviving spouse. BNR was forced to intervene into the case and Ngezahoguhora prayed the Court to terminate the sale agreement that BNR concluded with Rekeraho, arguing that BNR sold him another person’s plot, since the ruling on the case RCAA 0031/14/CS which held that the concerned plot belonged to Birikunzira. The Court found that the lodged claim is justified, and the courts did not determine who should refund Ngezahoguhora for the plot’s acquisition value, and the Court ordered to Ingabire to pay the plaintiff for the plot’s acquisition value price, and for BNR which concluded a double sale contract on one plot, the Court ordered to it to pay the balance on basis of the total price of the plot determined by the real property valuer and the damages. Ingabire appealed against the above ruling before the High Court, and she argued that it is BNR that should be accountable for the total refunding. But meanwhile, BNR has as well cross-appealed and prayed the Court to determine whether it is fair for it to refund for the plot plus related damages, yet it never concluded any agreement with the plaintiff. The Court held that BNR has a status of the first seller, and that it therefore had an obligation to protect Rekeraho against any dispossession of the property he purchased, and the Court ordered to BNR to pay for the total refunding on the concerned plot. BNR was not satisfied with the ruling, and it lodged an application for injustice related case- review. The case was heard by the Supreme Court which examined the issue related to determining who should pay to Ngezahoguhora for the plot he bought from Rekeraho as well as the damages claimed by the parties. BNR states that the High Court erred when it ordered to it to pay to Ngezahoguhora the total price of the plot without referring to any law, any contract or any error, but it exempted Rekeraho’s family for the received money; such stance contradicts with the legislation as the effects of the terminated sale agreement should be limited to the concerned contracting parties.

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Ngezahoguhora objected BNR’s arguments by which it states that it is not concerned by the sale agreement he concluded with Rekeraho. He argues that the main issue at hand does not stem from the sale agreement, he states that the issue concerns a plot that BNR sold to Rekeraho, which means that BNR was thereby the first seller while Rekeraho was the buyer. Besides, even the Supreme Court itself held that the concerned plot was not for BNR, as it belonged to Birikunzira, it is therefore clear that BNR must bear consequences in relation to the plot he sold to Rekeraho. Ingabire (Rekeraho’s spouse) submits that the statements of BNR that it did not conclude a sale agreement with Rekeraho are unfounded, because the contract concluded between BNR with Kicukiro District was about the sale of plots, and this is evidenced by the fact that every employee of BNR who wanted a plot was requested to refund BNR 1,200,000 Frw, an employee who fails to pay such money, could not secure a plot. Held: The seller shall warrant the buyer against the dispossession of the purchased property, or he/ she shall refund or request that the buyer is refunded by the one who dispossesses him/her of the purchased property; therefore, BNR is liable for the loss it incurred to Rekeraho, for the error it committed by of giving one plot to two employees, which led to the unfair dispossession of Ngezahoguhora who bought it, with reference to the principle of civil liability. The application for review of the case due to injustice has merit.

Statutes referred to: Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article 111. Cases referred to: Nishimwe and other v. Mugenga, RCAA 00031/2016/SC, rendered by the Supreme Court, on 25/09/2019; Twagirayezu Alice and others v. Twagirayezu Albert and other, RS/INJUST/RC 00007/2020/SC, rendered by the Supreme Court on 10/12/2021; Ngizweninshuti v. Muhima, RS/INJUST/RC 00024/2018/SC, rendered by the Supreme Court on 21/02/2020; RADIANT INSURANCE COMPANY Ltd v. Dusabimana, RS/INJUST/RC 00005/2021/SC, rendered by the Supreme Court on 21/01/2022 Doctrines Le Tourneau, Philippe & Cadiet, Loïc, Droit de la responsabilité. (1998). Page 715 – 716. Corbière, P. H. (1867). Le droit privé administratif et public dans ses rapports avec la conscience et le culte catholique. Martin-Beaupré., p. 493-496. Serge BRAUDO et Alexis BAUMANN, Dictionnaire Juridique, 1996-2019, available on https://www.dictionnaire-juridique.com, accessed on 14/07/2022. Judgment

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I. BACKGROUND OF THE CASE

This case originates from the agreement of 30/03/2010 on the sale of a plot of 750 m2 registered as plot n0 10270 located in Bwerankori Cell, Kigarama Sector, Kicukiro District in the City of Kigali. This agreement was concluded between Ngezahoguhora Ildephonse and Rekeraho Aloys, who even proceeded with property ownership transfer formalities and the plot got finally registered on the names of Ngezahoguhora Ildephonse.

When Ngezahoguhora Ildephonse was about to develop his plot, he received a letter from the local authorities halting him from proceeding with the construction works, till the ruling on the case RC 157/09/TGI/NYAGE between the National Bank of Rwanda (BNR) and Birikunzira Jean Baptiste who as well claimed for the very plot, arguing that he bought it from BNR when he was still working for it, but it later sold it to Rekeraho who was the employee of BNR.

Ngezahoguhora appealed to Kicukiro District and pleaded for justice for him to proceed with the construction works; arguing that the concerned plot was legally bought and he has all the related documents. When Ngezahoguhora Ildephonse got not satisfied with the feedback, he sued Ingabire Jacqueline, Rekeraho’s spouse and BNR was forced to intervene into the case. Ngezahoguhora prayed the Court for the rescission of the sale agreement he had concluded with Rekeraho Aloys, lamenting that the latter sold him a plot while he was aware that it is not his property and he backs his claim up with the ruling on the case RCAA 0031/14/CS, whereby the Supreme Court held that the disputed plot belonged to Birikunzira Jean Baptiste.

Ingabire Jacqueline submits that his late husband Rekeraho Aloys acquired the disputed plot from BNR as one of its employees. The plot first belonged to Birikunzira Jean Baptiste who as well worked for BNR, and who later got fired and was evicted from the plot. She argued that when her husband acquired the concerned plot, he registered it under his name, and he later sold it to Ngezahoguhora Ildephonse.

BNR raised an objection over the claim inadmissibility and argued that it cannot be sued for a dispute that had already been decided by the courts and the judgments were final; it however requested that in case the Court finds it otherwise, Ngezahoguhora’s claim should not be admitted since BNR cannot be liable for the agreement between him and Rekeraho Aloys.

On 30/04/2019, the Intermediate Court of Nyarugenge heard the case RC 00047/2018/TGI/NYGE and found that the courts solely decided on the issue regarding the contractual obligations between Rekeraho Aloys and Ngezahoguhora Ildephonse, but they remained silent about who should refund Ngezahoguhora Ildephonse for the plot he had bought. The Court found with merits some of the requests Ngezahoguhora Ildephonse, and it ordered to Ingabire Jacqueline to refund him 6, 700, 000 Frw that her husband received by the time the plot sale agreement was concluded. The Court found that BNR made a mistake when it decided to give one plot twice, which became the root cause of the whole dispute, and it ordered to BNR to give to Ngezahoguhora Ildephonse a balance of 15,800,000 Frw remaining from a total sum of 22, 500,000 Frw for the actual current market value for the plot as per the details from real property valuer report. The Court has also ordered to BNR to give him 300,000 Frw as damages, 1,100,000 Frw as counsel fee and procedural fee.

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Ingabire Jacqueline appealed against the above ruling before the High Court arguing that she should not be held accountable for refunding Ngezahoguhora Ildephonse over the disputed plot, and she insisted that it is actually BNR which should pay for the total refunding. The National Bank of Rwanda has as well appealed against the very ruling, and prayed the Court to examine the objection it raised over the claim inadmissibility, and it also requested the Court to examine the fairness of the Court’s decision that ordered to it to pay 15,800,000 Frw to Ngezahoguhora Ildefonse, a person with whom it had no contractual obligation, and it also requested the Court to examine whether it should be charged for damages.

With the case RCA 00250/2019/HC/KIG-RCA 00251/2019/KIG rendered on 27/08/2020, the High Court found that BNR was the first seller, and it therefore had an obligation of warranting Rekeraho Aloys against the dispossession of the purchased property, and thus indirectly protecting Ngezahoguhora Ildephonse who, by later bought the very plot. The Court ordered to BNR to refund Ngezahoguhora Ildephonse with 22,500,000 Rwf for the disputed plot.

The National Bank of Rwanda was not satisfied with the ruling of the case, and it petitioned the Court of Appeal for injustice-related review of case RCA 00250/2019/HC/KIG-RCA 00251/2019/HC/KIG rendered by the High Court on 27/08/2020. The President of the Court of Appeal examined the petition and wrote to the President of the Supreme Court praying him to have the above case reviewed for injustice related grounds. The President of the Supreme Court examined the case report, and sent it to the Supreme Court registry for hearing, and it got registered as RS/INJUST/RC 00002/2022/SC.

The hearing was conducted in public on 15/06/2022, all the parties were present; BNR was represented by Counsel Murego Jean Léonard, Ngezahoguhora Ildephonse was assisted by Counsel Nsabayezu Evariste, while Ingabire Jacqueline was assisted by Counsel Habakurama François Xavier.

The Court examined the two underlying issues that included the determination of the person who should refund Ngezahoguhora Ildephonse for the plot he had purchased, and determining whether the damages claimed by the parties should be granted to them. II. ANALYSIS OF THE LEGAL ISSUES OF THE CASE  i Determining a person who should refund Ngezahoguhora Ildephonse for the plot he bought from Rekeraho Aloys

Counsel Murego Jean Léonard representing BNR argues that the High Court made an error when it ordered to BNR to pay to Ngezahoguhora Ildephonse the amount of 22,500,000 Frw without referring to any law, any contract or any other error and thus exempting Rekeraho’s family for the received amount of 6,700,000 Frw. Counsel Murego argues that such a stance contradicts with the provisions of articles 280 and 310 of Book III of the Civil Code, arguing that the effects of a rescinded sale agreement should be limited to the concerned contracting parties; he states that the effects should be limited to Ngezahoguhora Ildephonse and the family of Rekeraho Aloys, hereby represented by Ingabire Jacqueline who, therefore, should be ordered to refund the total price of the plot.

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He went on and explained that there is neither legislation nor contractual obligation that provides for a joint civil liability between BNR and Rekeraho’s family towards Ngezahoguhora Ildephonse, arguing that the agreement concluded between BNR and Kicukiro District was not the sale agreement as it is alleged by other parties, rather, it was the agreement concluded in a bid to help the employees of BNR to secure plots. With regard to the sum of 1,200, 000 Frw that every employee was requested to deposit, the lawyer of BNR explained that the above amount was meant for the plot development; therefore, the High Court should not make reference to article 310 of the Civil code book III, since this provision concerns the obligations between the seller and the buyer.

Counsel Murego has also argued that Rekeraho Aloys was always aware of any related deals that BNR undertook as it is evidenced by a number of correspondences that BNR sent out; such as the letter of 21/04/2008, whereby BNR requested that the concerned plot should be taken from Birikunzira Jean Baptiste and be registered on Rekeraho Aloys. He states that Rekeraho Aloys was well aware of the previously related lawsuits that existed between Birikunzira Jean Baptiste and Nyiransengiyumva, Rekeraho Aloys had been a party to those lawsuits, and he well knew that his claims are founded.

The lawyer of BNR concluded on this issue by requesting the Court to make reference to articles 33 and 63 of Civil Code Book III then into force by the time the contract was concluded and articles 64 and 113 of the Law no 45/2011 of the 25/11/2011 governing contracts, and hold that the plot sale agreement of the 30/03/2010 does not concern BNR, and rule that such contract should be limited to the concerned contracting parties, who by the virtue of the very contract, have even proceeded with property ownership transfer formalities. He adds that, since the above mentioned agreement has been invalidated by the ruling of the case RCA 0412/10/HC/KIG rendered on 20/09/2013 with reference to articles 276, 256, 303, 306, 307 and 310 of Civil Code Book III; the Court should order for the reset of the pristine status and Ingabire Jacqueline should refund to Ngezahoguhora Ildephonse the plot price.

In his submissions and during the hearing, Counsel Nsabayezu Evariste who assists Ngezahoguhora Ildephonse, states that BNR’s argument about having concluded no agreement with Rekeraho Aloys, is pointless. He argues that the dispute at hand does not stem from the latest agreement, it rather originates from a plot that Rekeraho Aloys bought from BNR, which makes it clear that BNR was the plot’s first seller, while Rekeraho Aloys was a buyer; except that by the ruling on the case RCAA 0031/14/CS, page 10 and paragraph [28], the Supreme Court held that BNR sold the plot which did not belong to it, rather it belonged to Birikunzira Jean Baptiste.

Counsel Nsabayezu argues that the above stance makes it clear that BNR should bear the consequences from the sale agreement it concluded with Rekeraho Aloys when it sold to him the plot n0 10270 which later turned out to be for another person; more so that BNR had an obligation of warranty to Rekeraho Aloys against the dispossession of the purchased property as per the provision of article 302 of Civil Code Book III, and an obligation of warranting him against any latent defects in the purchased item together with any redhibitory defects as per the provision of article 310 of the very Book. He also requested the Court to make reference to articles 113 and 303 of the above mentioned Book, and move that the High Court made no error when it ordered to BNR to bear consequences arising from the agreement concluded between Ngezahoguhora Ildephonse and Rekeraho Aloys.

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With regard to the pre-deposit of 1,200,000 Frw that BNR requested to every employee for a plot, Counsel Nsabayezu Evariste argued that such deposit was for the plot purchasing price, and a mere fact that BNR lost a related case whereby the Supreme Court revoked the sale agreement of the concerned plot does not prevent Ngezahoguhora Ildephonse from pursuing his right to the refunding for the plot he had purchased. But given the fact that from 2010 up to now the land value price kept increasing, the Court should award him 60,000,000 Frw, and not 22,500,000 Frw that had been granted by the High Court.

Counsel Habakurama François Xavier who assists Ingabire Jacqueline, states that the BNR’s argument by which it concluded no agreement with Rekeraho Aloys is unfounded; more so that the agreement BNR concluded with Kicukiro District was about the buying of plots, and this reality is evidenced by the fact that every employee who intended to secure a plot was requested to first make a pre-deposit of 1, 200,000 Frw, the employee who fails to pay such amount could not be given a plot.

Counsel Habakurama François Xavier submits that BNR does not deny that Rekeraho Aloys was one of its employees who received the plots and he was given 1,200,000 Frw, he cleared its repayment on 19/02/2010, he received the repayment clearance certificate. He therefore argues that Rekeraho Aloys did not do any wrong, and he had all the legal rights to sell his property to Ngezahoguhora Ildephons, and BNR had an obligation to warrant him the enjoyment of the purchased property. He explained that Rekeraho’s rights are furthermore proven by the fact that when he sold the concerned plot to Ngezahoguhora Ildephonse, he had all the related documents that included the cadastral plot design, the building permit, and the plot land title, and the same is confirmed by the ruling on the case RCA 0031/14/CS, between Birikunzira Jean Baptiste, Nsengiyumva and BNR, in which Ngezahoguhora Ildephonse and Rekeraho Aloys intervened, and whereby in paragraph [35] of the ruling, the Supreme Court held that BNR did err when it decided to give the same plot to its two employees, and it did not request for quashing the judgment.

Furthermore, due to the fact that the Court held that BNR is civilly liable for the effects from the case between Birikunzira Jean Baptiste and Nyiransengiyumva, Counsel Habakurama François Xavier submits that BNR should as well be liable for the consequences arising from the agreement concluded between Ngezahoguhora Ildephonse and Rekeraho Aloys since Birikunzira Jean Baptiste and Rekeraho Aloys were both its employees; therefore, it should settle the disputes that rose from the acts of Rekeraho Aloys, as it did for the case of Birikunzira Jean Baptiste.

He further states that in case the Courts held that Rekeraho Aloys should refund Ngezahoguhora Ildephonse, article 258 of Civil code Book III, and article 481 of the Law n0 45/2011 of the 25/11/2011 governing the contracts entitle to him the right to sue National Bank of Rwanda as the root cause of all his troubles.

He then concludes by adding that in case the Court moves by ordering to Rekeraho’s family to refund Ngezahoguhora Ildephonse with 6,700,000 Frw it received, it should as well order to BNR to give to Ingabire Jacqueline 15,000,000 Frw for the plot’s current value price within 16 years from the plot sale, since the land value annually increases, and the money to be refunded to

1 Article 48 of the Law n0 45/2011 of 25/11/2011 governing contracts provides that a party bears the risk of a mistake when it is aware that, at the time the contract was made, it had only limited knowledge with respect to the facts to which the mistake relates but considered such limited knowledge as sufficient.

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Ngezahoguhora Ildephonse should be deducted from the money repaid by BNR to Rekeraho Aloys. DETERMINATION OF THE COURT

With reference to the submissions and explanations from BNR’s lawyer, the main issue considered as the ground for which the case RCA 00250/2019/HC/KIG was subjected to the application for review on grounds of injustice is the fact that the High Court held that BNR should pay to to Ngezahoguhora Ildephonse the total refunding for the plot he bought from Rekeraho Aloys, it exempted the family of Rekeraho Aloys for 6,700,000 Frw it received. The respondents argue that it is BNR which should be held liable for the mistakes it committed by selling one plot to its two employees, and it should refund to Ngezahoguhora Ildephonse for the total cost of the concerned plot, computed at its current market value.

The case file indicates that on 02 March 2006, the National Bank of Rwanda and Kicukiro District entered into an agreement whereby Kicukiro District agreed to give to BNR 92 middle standing plots located in Kigarama Sector, for constructing for its employees the houses built with semi-durable materials. Article 2 of the above mentioned agreement provides that Kicukiro District undertook to develop the roads and compensate the residents, while article 3 of the agreement stipulated that BNR shall avail funds for developing the plots amounting to 1,200,000 Frw per each plot.

The Court finds that, as expounded along with the case under review for injustice related grounds, after being given the plots by Kicukiro District, BNR gave to Rekeraho Aloys the plot registered on n0 10270 which is evoked in the paragraph one of this case, he paid 1,200,000 Frw and BNR delivered to him the payment clearance certificate, on 21/04/2008, BNR requested Kicukiro District to remove Birikunzira Jean Baptiste from the concerned plot and register it on Rekeraho Aloys, its employee. Rekeraho Aloys later sold it out to Ngezahoguhora Ildephonse on 30/03/2010.

The Court finds that the main reason for which the High Court held that BNR should refund the price of the plot that Ngezahoguhora Ildephonse bought from Rekeraho Aloys , lies in the fact that through the agreement BNR concluded with Kicukiro District, it sold a plot to Rekeraho Aloys yet it had already sold it out to Birikunzira Jean Baptiste. It relied on the fact that Rekeraho Aloys to BNR the sum of 1,200,000 Frw for the acquisition of the concerned plot. The legal counsel for Ngezahoguhora Ildephonse and Ingabire Jacqueline rely on that payment for stating that such is the price given, they request that BNR should warrant the property it sold to Rekeraho Aloys after dispossessing Ngezahoguhora Ildephonse.

With regard to the sum of 1,200,000 Frw which every BNR’s employee was requested to deposit for a plot, the Court finds that, with reference to article (3) of the agreement concluded between Kicukiro District and BNR, there is no indication that such amount was the price of the plot given to an employee as alleged by the legal counsel for Ngezahoguhora Ildephonse and Ingabire Jacqueline; instead, both contracting parties agreed that the above deposit was meant for the layout of the plots, just as it has been explained under paragraph [25] of this case. Therefore, the fact that BNR made a total prepayment of 110, 400,000 Rwf, of which it later recollected at ratios of 1,200,000 from each of its employees who received a plot, does not requalify the purpose

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of the above deposits just as the BNR’s lawyer put it. Therefore, those who termed the above deposits as the plots’ price have no justification; thus clarifying the inapplicability of warrant against the dispossession of the purchased property since BNR has never entered into any sale agreement neither with the District nor with Mr. Rekeraho Aloys.

With regard to the Principle of warrant against dispossession of the purchased property, the Court finds that legal scholars including Philippe Le Tourneau and Loïc Cadiet argue that with reference to the famous principle, the warrantor should not interfere with the buyer’s enjoyment of the purchased property, and this means that the seller should not inconvenience the buyer on the purchased property unless he/she first rescinds the existing sale agreement. They also argue that the interference on the purchased property means the buyer’s dispossession of the purchased property owing to third parties’ rights2.

Another legal scholar states that even when the sale agreement contains no warranty clause, the seller shall always be obliged to warrant the buyer against the whole or partial dispossession of the purchased property, the seller shall as well warrant the buyer against any undeclared third parties claim’s on the purchased property3.

With reference to the above scholars’ explanations, the Court finds that the principle makes it clear that the seller is responsible for the buyer’s eviction from the purchased immovable property. This is the very stance that was held by the Supreme Court in the case RCAA 00031/2016/SC, whereby the Court decided that the seller shall warrant the buyer’s rights against any assailment on the purchased item, and that the seller shall refund or have the buyer refunded by the dispossessing third parties 4.

With regard to the effects of the purchased property restitution by the buyer, this Court set a precedent when it held that the sellers must refund the dispossessed buyers at the current market value of the returned property, and all in consideration of the actual market value price of the returned property.5

With reference to the explanations provided under the preceding paragraph, the Court finds that the principle of warrant against dispossession of the purchased property binds late Rekeraho Aloys, hereby represented by Ingabire Jacqueline, his spouse, as a seller who sold the concerned plot to Ngezahoguhora Ildephonse, who later got evicted from the disputed plot by the ruling of the case RCA 0412/10/HC/KIG which held that the concerned plot belonged to Birikunzira Jean

2 Le Tourneau, Philippe & Cadiet, Loïc, Droit de la responsabilité. (1998). Page 715 – 716, Selon une maxime célèbre, qui doit garantie ne peut évincer, elle signifie que le vendeur ne doit pas perturber la jouissance paisible de l’acquéreur. Concrètement, il ne saurait invoquer un droit sur le bien (trouble de droit, sauf pour intenter une action en nullité absolue ⦋..⦌. L’éviction est la perte que souffre l’acheteur de la chose vendue, ou d’une part, par le droit d’un tiers. 3 Corbière, P. H. (1867). Le droit privé administratif et public dans ses rapports avec la conscience et le culte catholique. Martin-Beaupré., p. 493-496.Quoique lors de la vente, il n’ait été fait aucune stipulation sur la garantie, le vendeur est obligé de droit, à garantir l’acquéreur de l’éviction qu’il souffre de la totalité ou partie de l’object vendu, ou des charges prétendues sur cet objet, et non déclarées lors de la vente. 4 Case n0 RCAA 00031/2016/SC with Nishimwe Claudine, Mashami Gisèle v. Mugenga Joseph, rendered on 25/09/2019. 5 See case n0 RS/INJUST/RC 00007/2020/SC with Twagirayezu Alice and others v. Twagirayezu Albert and Umumaranyota Agnès, rendered on 10/12/2021, page 18, paragraphs 41 and 42.

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Baptiste and thereby rescinded the sale agreement between Rekeraho Aloys and Ngezahoguhora Ildephonse.

[34] With regard to the amount that Ngezahoguhora Ildephonse should be refunded, the Court finds that Ingabire Jacqueline shall refund him with 22,500,000 Frw equivalent to the plot market value as determined on 08/11/2017 by Eng. Rutazana Jérôme, the property valuation expert. The statement of Counsel Nsabayezu Evariste that Ngezahoguhora Ildephonse deserves a refunding of 60,000,000 Frw that equates the plot’s current market value is unfounded, because as set by this Court in different cases, such a request has never been examined before, and neither did he apply for the case-review6.

The Court finds that BNR is liable for the loss it incurred on Rekeraho Aloys by having dispossessed him of the plot he had purchased due to the BNR’s mistake7 of giving the same plot to its two employees. The principle of civil liability has as well been explained along different cases rendered by this Court8. Therefore, BNR must pay to Ingabire Jacqueline 15,800,000 Frw, emanating from 22,500,000 Frw that Ngezahoguhora Ildephonse should be refunded with, and by deducting 6,700,000 Frw that Ngezahoguhora Ildephonse had paid to Rekeraho Aloys by the time of the plot purchasing. BNR should as well refund Ingabire Jacqueline for 1,200,000 Frw which Rekeraho Aloys had deposited for being given the plot by BNR.  Whether the damages requested by the parties should be granted to them

Counsel Murego Jean Léonard made reference to article 258 of Civil Code book III, paragraph 2 of article 111 of the Law n0 22/2022 relating to the civil, commercial, labour and administrative procedure, and article 109 of the Law governing contracts, and he prayed the Court to order to Ngezahoguhora Ildephonse and Ingabire Jacqueline to jointly pay to BNR 2,500,000 Frw for having dragged the Bank into unnecessary lawsuits. He also requested for the payment of the counsel fee, arguing that BNR incurred a loss of time, money and a variety of other resources for the follow-up on this case.

Counsel Nsabayezu Evariste assisting Ngezahoguhora Ildephonse argues that the BNR’s request for damages has no justification since it is BNR’s mistakes that made Mr. Ngezahoguhora Ildephonse being dispossessed of his plot. He prays the Court to grant to Ngezahoguhora Ildephonse 2,000,000 Frw for the counsel fee, and 500, 000 Frw for procedural fee in accordance with article 9 of the above mentioned Law n0 22/2022 and article 34 of Regulation fixing the scale of fees for Advocates.

Counsel Habakurama François Xavier who assists Ingabire Jacqueline argues that BNR does not deserve damages because it disregards the problem it caused and cannot even account

6 See case RS/INJUST/RC 00024/2018/SC with Ngizweninshuti Albert v. Muhima Giovani, rendered on the 21/02/2020, paragraph 21. 7 Cited by Serge Braudo and Alexis Baumann, Dictionnaire Juridique, 1996-2019, available on https://www.dictionnaire-juridique.com › definition › do..., accessed on 14/07/2022, la responsabilité civile est engagée, soit en raison de l'inexécution d'un contrat, soit en raison d'un acte volontaire ou non, entraînant pour la personne qui est fautive ou qui est légalement présumée fautive, l'obligation de réparer le dommage qui a été subi par une ou plusieurs autres. 8 See case RS/INJUST/RC 0005/2021/SC with RADIANT INSURANCE COMPANY Ltd v. Dusabimana Fulgence rendered on the 21/01/2022, paragraphs 26, 31 and 35.

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for. Basing on the article 111 of the above mentioned Law n0 22/2022, he requests that Ingabire Jacqueline should be repaid for all expenses incurred in these cases in which she was dragged by BNR and be granted 2,000,000 Frw for counsel fee and 500,000 Frw for procedural fee. DETERMINATION OF THE COURT

Article 111 of the Law n0 22/2018 of 29/04/2018, relating to the civil, commercial, labour and administrative procedure provides that “the claim for representation fees is an incidental claim to the principal claim aiming to repay expenses incurred during judicial proceedings. The claim for legal costs is adjudicated at the same time with the principal claim. It can also be admitted and adjudicated even if the principal claim has not been admitted”

The Court finds that the damages that Ngezahoguhora Ildephonse is claiming for the counsel fee and for case follow-up related expenses are worthy awarding since he incurred case- related expenses owing to the revocation of the sale agreement he had concluded with Rekeraho Aloys, and all originating from BNR’s mistakes that made him evicted from the property he had purchased, and which pushed him into seeking a legal assistance. Nevertheless, since he requested for an excessive amount and which he cannot account for, the Court has discretionarily awarded him 500,000 Frw for the counsel fee, and 300, 000 Frw for the incurred case-related expenses, the total is 800,000 Frw. The Court held that the above total will be paid by both BNR and Ingabire Jaqueline who lost on some issues of the case, each one shall pay the half of the amount which is 400,000 Frw.

The Court finds that BNR and Ingabire Jacqueline should not be granted the counsel fee and the procedural fee they claimed since they have lost on some issues of the case. III. DECISION OF THE COURT

Holds that the application of the National Bank of Rwanda (BNR) seeking the injustice- related review of the case n0 RCA 00250/2019/HC/KIG rendered by the High Court on 27/08/2020, is justified in part;

Holds that the ruling on the case RCA 00250/2019/HC/KIG rendered by the High Court on the 27/08/2020 is entirely overturned;

Orders to Ingabire Jacqueline to pay to Ngezahoguhora Ildephonse 22,500,000 Frw;

Orders to the National Bank of Rwanda (BNR) to pay to Ingabire Jacqueline 17,000,000 Frw; [46] Orders to the National Bank of Rwanda (BNR) and Ingabire Jacqueline to jointly pay to Ngezahoguhora Ildephonse 800,000 Frw, each one shall pay the half of the amount which is 400,000 Frw.