NYIRAMANYANA v. GT BANK RWANDA Ltd

# NYIRAMANYANA v. GT BANK RWANDA Ltd

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-05-22 - Case/document no.: R.COMA 0067/15/HCC - Collection: Commercial High Court

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NYIRAMANYANA v. GT BANK RWANDA Ltd [Rwanda COMMERCIAL HIGH COURT – R.COMA 0067/15/HCC (Nsengiyumva, P.J.) 22 May 2015] Evidence law – Evidence of the debt – The alleged debt is real because as there is set of evidence in support including various bank statements as well as various contracts – Article 3 of Law N° 15/2004 of 12/06/2004 relating to evidence and its production, article 3. Contract law – Loan contract – She/ he cannot deny to pay the debt owed under the pretext that the amount he paid is over the amount she is demanded to pay at any time she/he does not give evidence in support and that she/ he computed the amount she is under obligation to pay without taking into account the interests – Article 49 of Law N°45/2011 of 25/11/2011 governing contracts, article 64. Damages – Moral damages and advocate fees – These damages cannot be awarded as long as her/ his appeal has no merit; however, it is him/her who must pay the advocate fees since his appeal caused the other party to make recourse to the advocate whose service is paid – Law of 30/07/1888 governing contract or obligations, article 258. Contract law – suretyship contract – Joint and several liability – the surety and the creditor must jointly pay since he guaranteed the debt under several and joint liability –Law of 30/07/1888 governing contract or obligations, article 560. Facts: Nyiramanyana Chantal alongside his surety Kagemanyi Mpabuka Léonard were sued by GT BANK RWANDA Ltd. The latter was asking them to pay the debt and various damages. They were ordered to pay 90.327.718 Frw and to jointly refund 50.000 Frw for the court fees deposit. Nyiramanyana Chantal appealed to the Commercial High Court stating that the Commercial Court disregarded that she has 2.046.468 left Frw on the debt of 78.167.214 Frw as she had accepted the debt without knowing that 18.000.000 Frw was not released. Nyiramanyana Chantal requested the Court to figure out the amount of money that she would be pay, would it find that 18.000.000 was released to DS Pharmaceutics with due attention to the amount already paid, to order GT BANK RWANDA Ltd to pay to her damages for defamatory acts against his person for it alleges that she defaulted while she has completel paid the due amount and to order it to pay the advocate fees. GT BANK RWANDA Ltd responded that Nyiramanyana Chantal does not demonstrates the amount of the money she paid apart from verbal statements without taking into account that on that debt were arrears to the extent that remain debt reached 53.530.926 in addition to its interests of Frw 23.477.794 Frw. GT BANK RWANDA Ltd requests Nyiramanyana Chantal alongside her surety be ordered to pay 98.129.697, 75 Frw and the advocate fees. Held: 1. The disputed debt is real because there was no error in the conclusion of the contract dated December 10, 2009 whereby the debtor accepted to pay the debt 66.283.653 Frw that DS Pharmaceutics since it includes also the one of 18.000.000 Frw that was given through line of credit as DS Pharmaceutics was given and letter deposited to the account of AVVAIS ASBL.

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2. She must pay to GT BANK RWANDA Ltd 98.129.697,75 Frw since her statements that she has even paid the exfess of the amount she was supposed to pay have no merit as she considers that she must not pay interests while she does not manage to demonstrates the payment she had been regularly doing on the due date. 3. She cannot be awarded moral damages and the advocate fees since the Court found that she must pay the whole debt as demanded. Instead, she is the one who must pay these fees since his appeal forced the other party to hiring an advocate who offers a paid service. 4. KAGEMANYI Mpabuka Léonard must, jointly with Nyiramanyana Chantal,to pay GT BANK RWANDA Ltd since he committed himself to be her surety under joint and several liability and the payment may first immediately discussed from the assets of Kagemanyi Mpabuka Léonard. Appeal has merit. Cross appeal has merit. 18.000.000Frw was loaned to DS Pharmaceutics and Nyiramanyana Chantal accepted to pay it. The appellant is ordered to pay the whole debt and advocate fees The surety is ordered to jointly pay the debt with the debtor. The judgment is not changed apart from the debt and advocate fees. Statutes and statutory instruments referred to: Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, articles 4, 7, 167 and 212. Law N°45/2011 OF 25/11/2011 governing contracts, articles 49 and 64. Law N°32/2009 of 18/11/2009 governing negotiable instruments Article 3 of Law N° 15/2004 of 12/06/2004 relating to evidence and its production, article 3. Law of 30/07/1888 governing contract or obligations, article 258 and 560. No case was referred to Judgment I. BRIE BACKGROUND OF THE CASE [1] NYIRAMANYANA Chantal appealed against the judgment R.Com 0583/14/TC/Nyge rendered by Nyarugenge Commercial Court. In this case, GT BANK RWANDA Ltd had sued her alongside his guarantor, KAGEMANYI Mpabuka Léonard for the payment of the debt and various damages. The Court issued an order compelling them to jointly pay 90.327.718 Frw as well as refunding 50.000 Frw that it had paid as court fees deposit. On March 4, 2015, April 15, 2015 and on April 29, 2015 there were public hearings. Nyiramanyana Chantal and Kagemanyi

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Mpabuka Léonard were represented by Counsel Rwagitare Fred while GT BANK RWANDA Ltd was represented by Counsel Bimenyimana Eric. Counsel Rwagitare Fred states that Nyiramanyana Chantal has launched appeal for the Court to set aside 18.000.000 Frw that she is supposedly received through the line of credit because he committed to pay the loan that had taken by DS Pharmaceutics which accrued to 78.167.214 Frw after it was jointed with the debt he owes while she had later found that this line of credit was not requested and so not granted. Rwagitare Fred, states that Nyiramanyana Chantal has appeal because the Court has willingly ignored that on the debt of 78.167.214 Frw only 2.046.468 Frw remained unpaid as she had accepted it without taking into account the fact that 18.000.000 Frw had not been released. From here she reiterated that the debt is 60.167.214 Frw while she had executed the payment of 58.120.746 Frw and she had exceeded the amount she had to pay as the whole payment will be entirely executed in 2016,Counsel RWAGATARE Fred states further that Nyiramanyana Chantal requests the Court to figure out the amount of money left to be paid paying due attention to executed payment would the court find that 18.000.000 Frw was truly lent to DS Pharmaceutics and then order GT Bank Rwanda Ltd to pay the moral damages for it defamed her as it alleges that he defaulted while she had perfectly paid. He requests further advocate fees. Counsel RWAGITARE Fred states that KAGEMANYI Mpabuka Léonard does not reject his role of being guarantor of Nyiramanyana Chantal but he does not accept the mode of computation of the debt. Bimenyimana Eric submits that the debt of 18.000.000 Frw is evidenced by the contract entered into between GT BANK RWANDA Ltd and DS Pharmaceutics as there is a document « billet à ordre » signed by DS Pharmaceutics as acceptance of that debt. This document authorizes the bank to withdraw that money from its account and then be deposited to account of Association AVVAIS ASBL of which NYIRAMANYANA Chantal is Manager. The bank statement n° 221905008 done for AVVAIS ASBL this act of money transfer was done on October 31, 2008 while Chantal Nyiramanyan who purchased the debt does not deny that while DS Pharmaceutics to which the debt was given accepts the debt and that before she accepted to purchase she had accepted to be the warrantor. Counsel Bimenyimana Eric states that Nyiramanyana Chantal does not give prove of the amount of money she had paid to GT BANK RWANDA Ltd so that either the latter or the Court might have deliberately ignored it apart from stating that she had paid 58.120.746 Frw without taking into consideration the fact that she had delayed to pay as the recent payment was done July 16,2013 while GT BANK RWANDA Ltd valuated the money paid as on April 9,2010 it entered into loan contract of 78.167.214 Frw that had to be paid within months, that is, 1.872.326 Frw monthly, the whole debt being 134.807.472 Frw without computation of fees for late payment till his default went further to reach October 4, 2012 as she had only paid for 17 months out of 30 months and he requested for the modification of the contract and the main debt became 53.530.926 Frw and the interests of 23.477.794 Frw. Bimenyimana Eric states that GT BANK RWANDA Ltd requests an order of the Court compelling both Chantal Nyiramanyana and Kagemanyi Mpabuka Léonard, the warrantor, to jointly pay the debt of 98.129.697,75 Frw as well as the advocate fees. Counsel Rwagitare Fred argues that Nyiramanyana Chantal does not accept 18.000.000 Frw to have been deposited on the account of DS Pharmaceutics because the document titled ‘’autorisation de débit’’ is not original copy so as the Court to examine the signatures of the signatories who were under obligation to approve this amount of money be debited. In addition, these declarations are not true because DS Pharmaceutics could not authorise the debit of the account of AVVAIS ASBL while it is not the owner. In addition, the bank statement which demonstrates that the amount was deposited of AVVAIS ASBL must not

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be taken into consideration because on the place designed for the case of the transaction, it is written various transactions instead of mentioning the cause of the debit. [2] The legal issues that this court must examine are the following: - Whether DS Pharmaceutics was not granted the line of credit of 18.000.000 Frw to the extent that Nyiramanyana Chantal must not pay -. Whether Nyiramanyana Chantal must pay the debt of 78.167.214 Frw or whether the debt of 60.167.214 was constituted without taking into account interests, arrears so that he would be remaining with 2.046.468 to be paid. -. Whether Nyiramanyana Chantal must owes the debt of 98.129.697,75 Frw -. Whether moral damages and advocate fees must be awarded. -. Whether Kagemanyi Mpabuka Léonard, as a warrantor, and Nyiramanyana Chantal must jointly pay II. ANALYSIS OF LEGAL ISSUES 1. Regarding the fact of not awarding the loan to DS Pharmaceutics the credit through line of credit of the 18.000.000 Frw and not demanding Nyiramanyana to pay such amount. [3] Article 3 of Law N° 15/2004 of 12/06/2004 relating to evidence and its production provides that each party has the burden of proving the facts it alleges. Article 49 of Law N°45/2011 OF 25/11/2011 governing contracts provides that a judge may nevertheless order any contending party to produce elements of proof they have mistaken party s fault in failing to ‟ know or discover the facts before the contract formation does not bar him/her from requesting invalidation or revision of the contract, unless the fault results from acting in bad faith by not complying with the general requirements governing the contract formation article 124 of Law N° 32/2009 of 18/11/2009 a promissory note is an irrevocable promise written and signed by one person to another person, promising to pay with no further condition, on demand or at a fixed time, an amount of money payable to a specified person or to any bearer by endorsement. [4] Rwagitare Fred states that Nyiramanyana Chantal’s appeal aims at requesting the order of the court setting aside 18.000.000 Frw which is said to have been awarded through the line of credit since the ti8me when he committed himself to pay the debt that has been taken by DS Pharmaceutics which was later jointed to the one he personally owed and then decides that he owes the whole debt of 78.167.214 Frw while he finally came to know that this amount was not granted as the line of credit was not granted as it was applied for and hence not granted. [5] Bimenyimana Eric, the counsel, states that the debt of 18.000.000 Frw is evidenced by the contract entered into between drafted by FINA BANK between GT BANK RWANDA Ltd and DS Pharmaceutics, « billet à ordre », the document it signed as admission of the debt, the document authorizing the bank to withdraw that amount from the account of DS Pharmaceutics and be deposited on the account of Association AVVAIS ASBL of which Nyiramanyana Chantal is the Director General and the bank statement of AVVAIS ASBL numbered n° 221905008 which indicates that the transaction was done on October 31, 2008 and the money was

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withdrawn from account number n° 113500018 of DS Pharmaceutics while Nyiramanyana Chantal who purchased the debt does not deny it and that DS Pharmaceutics to which the debt was given does not deny it and even before it was purchased it was initially given explanations. He added that he had even warranted it and he could not warrant inexistent debt. [6] Rwagatare Fred, the counsel, argues that Nyiramanyana Chantal does not accept that 18.000.000 Frw was deposited on the account of DS Pharmaceutics since the document titled «autorisation de débit » is not an original copy so as the court to have the basis of examnation of all signatories of the authorization of the cash withdrawal and her declaration are not true because DS Pharmaceutics could not authorize the withdrawal of the money from the account of AVVAIS ASBL while it was not the owner of that account and that the transaction was done on October 21, 2008 while the contract was not yet concluded as it was entered into October 31, 2008. Furthermore, the bank statement demonstrates that the money was deposited on the account of AVVAIS ASBL cannot be taken into account as on the place designed to mention the reason of the transaction, it is mentioned ‘’ various acts’’ instead of mentioning the purpose of the transaction. [7] The Court finds that the fact that the documents provided by DS Pharmaceutics dated October 21, 2008 indicates that it authorizes the withdrawal 18.000.000 Frw from the account of AVVAIS ASBL and be deposited the account of AVVAIS ASBL is not evidence that this amount of money was not, on October 21, 2008, withdrawn from account n° 113500018 belonging to DS Pharmaceutics and be deposited to the account n° 221905008 belonging to AVVAIS ASBL since the bank statement of both accounts justifies that and that the contract dated November 30, 2008 demonstrates that DS Pharmaceutics has applied for that loan and that there is « billet à ordre » dated October 10, 2008 whereby she accepted to pay that loan. He added that Nyiramanyana Chantal recognizes that « billet à ordre » as well as the contract. Therefore, she committed no error when she committed to enter into the contract dated December 10, 2009 whereby she accepted to pay the debt of 66.283.653 that DS Pharmaceutics owes as it includes also the credit line of 18.000.000 given that DS Pharmaceutics was given it and was deposited on account of AVVAIS ASBL. Thus, this alleged debt is real. 2. In regard to paying the debt of either 78.167.214 or 60.167.214 Frw without the computation of interests and fee for late payment so that Nyiramanyana can pay the debt of 2.046.468 Frw or to have left the debt of 98.129.697,75 Frw. [8] Article 64 of Law N° 45/2011 of 25/11/2011 governing contracts provides contracts made in accordance with the law shall be binding between parties. They may only be revoked at the consent of the parties or for reasons based on law. They shall be performed in good faith. Article 167 of Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure provides 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. [9] Counsel Rwagitare Fred states that Nyiramanyana Chantal filed an appeal because the Court disregarded that she has 2.046.468 Frw left on the debt of 78.167.214 Frw since she had accepted that debt without taking into account the fact that 18.00d 0.000 Frw was not yet released. The reason why the debt is 58.120.746 Frw while 60.167.214 Frw while he has

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executed the payment of 58.120.746, Frw and yence he h had finished paying the debt since she will finish paying the debt by 2016. [10] Counsel Rwagatare Fred states that Nyiramanyana Chantal requests the Court to figure out the amount of money he remains for the payment of the whole debt would the Court find that DS Pharmaceutics was given 18.000.000 with due attention to the paid amount. [11] Counsel Bimenyimana Eric states that Nyiramanyana Chantal requests the Court does not figure out the amount of money he paid to GT BANK RWANDA Ltd and which was disregarded by either that Bank or the Court apart from verbally stating that he paid 58.120.746 Frw without including the arrears as the later payment was done on July 16, 2013 and that GT BANK RWANDA Ltd considered the amount he paid as because on April 9, 2010 it concluded the contract of the debt of 78.167.214 Frw that he had to pay within 72 months every month, that is 1.872.326 Frw and the whole debt would total 134.807.472 Frw without including the late payment and it reached October 4, 2012and she failed to pay as he defaulted for 17 months out of 30 months and he requested to modification of the contract and the main debt became 53.530.926 and the interests of Frw 23.477.794 Frw. [12] Bimenyimana Eric states that GT BANK RWANDA Ltd seeks an order of the court compelling Nyiramanyana Chantal to pay 98.129.697, 75 Frw which must be computed till January 31, 2015. [13] The Court finds that at the time Nyiramanyana Chantal was loaned with 78.167.214 Frw on the interest of 20% which had to be added to ordinary interests and the monthly payment is 1.872.326 to which he adds 18.000.000 Frw that was given as loan to DS Pharmaceutics through credit line which must not be deducted from that debt and takes away 58.120.746 Frw which was already paid without taking into account the interests and fees for late payment as embodied in the contract and he states that he has 2.046.468 Frw left on the debt that he owes without taking into consideration all of those interests and fee while he had contracted to pay 78.167.214 Frw. Thus, she must pay to GT BANK RWANDA Ltd 98.129.697, 75 Frw which she is demanded to pay because her declaration that she had exceeded the amount she was under obligation of paying are unfounded. This is so decided because she considers as if she must not pay interests as she failed to demonstrates how she had been making payments until she exceeded the due amount while his late payment was done on July 16, 2013 as evidenced by bank statement because article 4 of the contract provides that the breach entails forced payment of the amount left to be paid. 3. Regarding the payment of the moral damages as well as advocate fees [14] Article 258 of the first book of the civil code governing contract or obligations provides that that “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” [15] Counsel Rwagitare Fred states that Nyiramanyana Chantal requests an order of the court compelling GT BANK RWANDA Ltd to pay to her moral damages equivalent to Frw 2.000.000 for she was defamed when the Bank rumored that she had defaulted while she had made the entire payment. She requests also advocate fees amounting to 2.000.000 Frw.

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[16] Counsel Bimenyimana Eric submits that GT BANK RWANDA Ltd requests an order against Nyiramanyana Chantal to pay advocate fees on appeal level amounting to 1.000.000 Frw. [17] The Court finds that GT BANK RWANDA Ltd must not award moral damages and advocate fees to Nyiramanyana Chantal since it found that she owes it a debt. The Court instead finds that it is her who must pay to it at appeal level equivalent to 500.000 Frw since her appeal cost the other party the advocate fees whose service must be paid. It is however awarded in the court’s discretion as the demanded amount is excessive. 4. With regard to demanding the guarantor to pay [18] Article 560 of the First Book of the Civil Code about contract or obligations provides that the surety is obliged to the creditor to pay it only in default of the debtor, who must be discussed beforehand in his property, unless the surety has renounced the benefit of discussion, or unless he be jointly and severally liable with the debtor; in which case the effect of his appointment shall be governed by the principles which have been established for solidarity debts. [19] Bimenyimana Eric states that GT BANK RWANDA Ltd seeks an order of the court against Nyiramanyana Chantal and Kagemanyi Mpabuka Léonard, the guarantor, to jointly pay. [20] Counsel Rwagitare Fred states that Kagemanyi Mpabuka Léonard does not deny that he is a guarantor of Nyiramanyana Chantal. However, he does not agree on the mode of computation of the debt. [21] The Court finds that Kagemanyi Mpabuka Léonard must jointly with Nyiramanyana Chantal to pay GT BANK RWANDA Ltd since he accepted to be her guarantor under joint and severally liability and the payment may be immediately discussed from properties of Kagemanyi Mpabuka Léonard. III. THE DECISION OF THE COURT [22] Accepts to receive appeal filed by Nyiramanyana Chantal but decides that it has no merit. [23] Accepts to receive cross appeal filed by GT BANK RWANDA Ltd and hereby decides that it has merit. [24] Decides that 18.000.000 Frw given to DS Pharmaceutics through line of credit and which embodied in the contract dated December 10, 2009 that Nyiramanyana Chantal entered into accepting to pay the debt. [25] Decides that Nyiramanyana Chantal must pay to GT BANK RWANDA Ltd the debt of 98.129.697,75 Frw as well as the advocate fees at appeal equivalent to 500.000 the totality being 98.629.697,75 Frw. [26] Orders that Kagemanyi Mpabuka Léonard to jointly pay to GT BANK RWANDA Ltd with Nyiramanyana Chantal and the payment may be immediately discussed from the properties of Kagemanyi Mpabuka Léonard.

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[27] Decides that the ruling of the judgment R.Com 0583/14/TC/Nyge is not unchanged aparty from the quantum of the damages which accrues and the advocate fees at appeal. [28] Orders Nyiramanyana Chantal and Kagemanyi Mpabuka Léonard to jointly pay 98.629.697, 75 Frw to GT BANK RWANDA Ltd and the payment may be immediately sought from the assists of Kagemanyi Mpabuka Léonard. [29] Orders that the ruling of the judgment R.Com 0583/14/TC/Nyge is not changed save the quantum of the debt which accrues as well as the advocate fees which accrues at appeal. [30] Decides that the court fees deposit equivalent to Frw 75.000 Frw that Nyiramanyana Chantal deposited remains to the public fund.