NKURUNZIZA v. MUDOGO ET.AL

# NKURUNZIZA v. MUDOGO ET.AL

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-10-10 - Case/document no.: RADA 0026/12/CS - Collection: Supreme Court

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NKURUNZIZA v. MUDOGO et.al [Rwanda SUPREME COURT – RADA 0026/12/CS (Mukanyundo, P.J., Rugabirwa, Hitiyaremye, J.) October 10, 2014] Administrative procedure – Cross appeal – The effect for filing cross appeal when the respondent comes for getting on appeal what he was denied on the first level – The respondent is not entitled to lodge an appeal against the respondent incident, for which he succumbed, when it comes for him to get on appeal that he was denied at trial. In this case, it is a main appeal was to be filed – Law No 21/2012 of 14/06/20122004 relating to the civil, commercial, labour and administrative procedural, article 167 Fact : The State of Rwanda leased Nkurunziza the piece of land which led Mudogo to sue them at the High Court stating that the State of Rwanda should not lease his piece of land because he bought it with Kankundiye, therefore the emphyteutic lease should be quashed and also he must be given the various damages. The Court held that the piece of land which is in litigation belongs to Mudogo because he was given it before the State of Rwanda gave it to Nkurunziza, therefore the decision of the emphyteutic lease is quashed and it ordered that Mudogo must be given back that piece of land, and also that both respondents must pay jointly damages. Nkurunziza appealed against that judgment at the Supreme Court stating that the High Court should hold that the piece land belongs to him because he possesses its documents including emphyteutic lease which could not be avoid even if it was concluded by basing on the contract which can be terminated or be avoid. The State of Rwanda filed cross appeal in stating that he raises the objection which concerning that the High Court should not admit the claim of Mudogo because after lodging the administrative appeal, he delayed to sue, therefore the decision of 14 March 2012 made by this Court which held that his action is admitted, must be quashed, the Counsel for Mudogo states that the cross appeal must not be admitted Held : The respondent is not entitled to lodge an across appeal against another respondent, for which he succumbed, when he aims to get from him in that appeal what it was denied at first trial. In this case, it has to be claimed through a main appeal . The objection raised by the State of Rwanda is overruled . The Court fees are suspended. Statutes and statutory instruments referred to: Law no 21/2012 of 14/06/20122004 relating to the civil, commercial, labour and administrative procedural, article 167. Law No 18/2004 of 29/06/2004 relating to the civil, commercial, labour and administrative procedural, article 162(2). Cases referred to:

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Société Nationale Chinoise des Travaux, Ponts et Chaussées SNCTPC-China Road V. BEST LTD, RCOMA 0196/12/CS, rendered by the Supreme Court, February 21/2014. Authors cited: Talendier, Traité de l’appel en matière civile (E-BOOK-free), Section Dixième, l’appel incident est–il recevable d’intimé à intimé. Judgment BRIEF BACKGROUND OF THE CASE [1] Mudogo Selemani sued the State of Rwanda ( ministry which has land in it‘s attribution) and Nkurunziza François Xavier at the High Court stating that the State of Rwanda should not lease to Nkurunziza his piece of land which locates at Rusororo Sector, Gasabo District because he bought it with Zafarani Kankudiya on 13 November 1980, therefore the emphyteutic lease nº1493/GAS/RUS of 29 August 2011 which the State of Rwanda gave him, should be quashed so that he repossess it and also he must be given the various damages. [2] The Court rendered the judgment and held that the piece of land which is in litigation belongs to Mudogo Selemani because he was given it before the State of Rwanda ( Ministry which has the land in its attribution) gave it to Nkurunziza François Xavier, therefore the decision of the emphyteutic lease done by that Ministry for leasing that piece land to Nkurunziza François Xavier is quashed, it ordered that Mudogo Selemani be given back that piece of land, ordered also that the State of Rwanda and Nkurunziza François Xavier pay jointly 3,000,000Rwf of damages to Mudogo Selemani. [3] Nkurunziza François Xavier appealed against that judgment at the Supreme Court stating that the High Court had to hold that the piece land belongs to him because he possesses its documents including emphyteutic lease which could not be avoid even if it was concluded by basing on the contract which can be terminated or be avoid. [4] The Counsel for the State of Rwanda ( Ministry which has the land in its attribution) filed cross appeal in stating that he raised the objection which concerning that the High Court should not admit the claim of Mudogo Selemani because after lodging the administrative appeal, he delayed to sue , therefore the decision of 14 March 2012 made by this Court which held that his action is admitted, must be quashed, the Counsel for Mudogo states that the cross appeal must not be admitted. [5] On 09 September 2014, the judgment of the case was held in public on that objection, Nkurunziza François Xavier represented by the Counsel Ruzindana Ignace, Mudogo Selemani represented by the Counsel Munyamasoko Jovit whereas the State of Rwanda ( Ministry which has the land in its attribution) represented by the State attorney Malala Aimable. II. ANALYSIS OF THE LEGAL ISSUE Determine whether the cross appeal raised by State of Rwanda should be admitted

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[6] The Counsel for the State of Rwanda Malala Aimable states that he raises the objection in its cross appeal to the appeal of Nkurunziza François Xavier so that the Supreme Court rules that the High Court should not admit the claim of Mudogo Selemani because after his administrative appeal, he delayed to sue since the period of six( 6 ) months which was provided for by article 339 of the law no 18/2004 of 29/06/2004 relating to the civil, commercial, labour and administrative procedural which was in force at the time Mudogo sued , has expired therefore the decision of 14 March 2012 made by the High Court which held that his claim was admitted, must be quashed. [7] Munyamasoko Jovit the Counsel for Mudogo Selemani argues that the fact the State of Rwanda did not appealed against that decision on the objection made by the High Court on 14 March 2012 mentioned above it cannot appeal against it in its cross appeal because the appeal is allowed for the party in requesting the damages only. [8] Ruzindana Ignace the Counsel for Nkurunziza François Xavier states that according to what is provided for by article 167(2) of law No 18/2004 of 29/06/2004 mentioned above, the States of Rwanda cannot only use its right of cross appeal for requesting the damages. THE VIEW OF THE COURT [9] Regarding with the Cross appeal, article of 167 of the Law no 21/2012 of 14/06/20122004 relating to the civil, commercial, labour and administrative procedural, provides for that “the respondent may also file a cross appeal before or during hearings, even if he/she did not protest anything when he/she was served with a copy of the final judgment. A cross appeal may be filed by the respondent against the appellant or against other respondents. It shall not be solely based on obtaining compensation”. [10] As it was ruled in the judgment RCOMA 0196/12/CS rendered by this Court on 21 February 20141, Law scholars named “Talendier” explains that the respondent is not entitled to lodge an appeal against the respondent incident, for which he succumbed, when it comes for him to get on appeal that he was denied at trial. In this case, it is a main appeal was to be filed2. [11] Regarding with this judgment, the file demonstrating that on 14 March 2012, High Court held that the claim of Mudogo Selemani is admitted because it was lawfully filed. On 08 March 2013, that Court rendered the judgment RAD 0176/10/HC/KIG in the merit and it ruled that the piece of land which is in litigation belongs to Mudogo Selemani, it ordered the State of Rwanda to pay jointly with Nkurunziza François Xavier 3,000,000Rwf of damages to him. [12] The case file also demonstrates that the State of Rwanda did not appealed against that decision together with the judgment RAD 0176/10/HC/KIG which rendered in merit during 30 day of the appeal as it is provided for by article 162(2) of law no 18/2004 of 20/06/2004 relating to the civil, commercial, labour and administrative procedural which was in force at that time, it

1 Judgment RCOMA 0196/12/CS Société Nationale Chinoise des Travaux, Ponts et Chaussées SNCTPC-China Road V/ BEST LTD rendered by the Supreme Court on 21 February 2014. 2 Talendier, Traité de l’appel en matière civile (E-BOOK-free), Section Dixième, l’appel incident est–il recevable d’intimé à intimé.

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provided for that the appeal against an interlocutory judgement shall be made only jointly with the final judgement. . [13] In its submission of 09 September 2014 and before the Court, the State of Rwanda, which is sued in appeal level, raised the objection in its cross appeal requesting that the decision made on the objection by High Court on 14 March 2012 which held that the claim of Mudogo Selemani was admitted, should be quashed because after his administrative appeal, he delayed to sue. [14] Analysing the provision of article 167 of Law no 21/2012 of 14/06/20122004 relating to the civil, commercial, labour and administrative procedural mentioned above, the Court finds that this article provides only that the respondent in appeal who is not the one who appealed in the period of 30 day of the appeal he could also to file cross appeal before the hearing against the appellant or against other respondents, whereas the law scholar differentiate the time the respondent in appeal is entitled to lodge claim in a cross appeal for the one who is respondent in appeal and the time he is not entitled to do so as it is above motivated. [15] Therefore the Court finds that the fact the State of Rwanda lost the case on the first instance for the objection raised by Nkurunziza François Xavier had the purpose of not admitting the claim of Mudogo Selemani, the Court denied it but the State of Rwanda did not appeal against that the decision in the main appeal therefore it cannot request to be given what it was lost in the first level through in its cross appeal. III. DECISION OF THE COURT [16] Decides that the objection raised by the State of Rwanda which has the purpose to not admitting the claim of Mudogo Selemani, it is not admitted because it is unlawfully filed; [17] Decides that the decision of 14 March 2012 made by the High Court that the claim of Mudogo Selemani was admitted, sustained; [18] Decides that the hearing of this judgment in the merit will be on 13 January,2015; [19] Orders that the Court fees are suspended.