Re SUSSMAN

Re SUSSMAN

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-01-27 - Case/document no.: RCOM 0002/14/HCC - Collection: Commercial High Court

Text

Page 1

Re SUSSMAN [Rwanda COMMERCIAL HIGH COURT – RCOM 0002/14/HCC (Kamere, P.J.) 27th January 2014] Commercial procedure – Exparte application – Its admissibility in case there is another case which involve the party who is mentioned in the exparte application – An exparte application can not be admitted and be analysed in merit in case the party that filed it, he/she filed another claim before the same court opposing with another party, it is considered as to escape his adverse party for looking another shortcut procedure to file another claim which may be considered to deprive him the right to defense. Commercial procedure – Analysing the exparte application when there is another case which is being analysed to which it is not connected to – Jurisdiction of the High Court for analysing it in the first instance – If the party has already lodged a claim in the first instance and it is being heard by the Commercial High Court he/she may not again lodge another claim which is not connected to that one and be admitted since it is not under its jurisdiction – Organic Law n° 06/2012/OL of 14/09/2012 determining the organisation, functioning and jurisdiction of commercial courts, article 13. Facts: Sussman seized the Commercial High Court through an exparte application requesting it to take an urgent decision of provisionally seizing the movable and immovable properties of the company MH

International, those of Mwangacucu and those of Umubera where they may be located or where they may be taken through on the Rwandan territory in case the Commercial Court have not decided yet that the judgment no 292653 W rendered in United States of America on 20/08/2010 be executed in Rwanda. The Commercial High Court declared inadmissible the claim of Sussman which was lodged through an exparte application since he has lodged another claim aiming at being allowed that the judgment rendered abroad be enforced in Rwanda. It decided again that it cannot be admitted since the claim lodged through an exparte application is not within its jurisdiction. Held: 1. In case Sussman has already lodged another claim requesting for the authorization for the judgment he claims to have won abroad to be allowed to be executed in Rwanda he cannot be allowed to escape his ordinary adverse party and look for another shortcut procedure without following the procedure of exequatur which has been provided for by the law while it has started but it has not been ended yet.

2. The procedure of lodging a claim in the first instance which Sussman is allowed, it is the one he has started in the judgment RCOM 0019/13/HCC in case he needs urgent decision before the decision of the mentioned judgment, he requests it within that case in legal procedure and which allows to his adverse party an opportunity and time for defense in the hearing. Claim declared inadmissible; Court fees to the plaintiff.

Page 2

Statues or statutory instruments referred to: Organic Law n° 06/2012/OL of 14/09/2012 determining the organisation, functioning and jurisdiction of commercial courts, article 13. N° 21/2012 of 14/06/2012 Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 316 and 324. No case referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] On 09/01/2014, Robert Sussman of American Nationality who resides in United States of America, through his advocate Buhuru Pierre Celestin, the counsel, seized an exparte application with this court requesting it to take an urgent decision of provisionally seizing the movable and immovable properties of the company MH International, those of Mwangacucu Hizi Edouard and those of Umubera Mwangacucu where they may be located or where they may be taken through on the Rwandan territory before deciding that authorizing the execution in Rwanda of that the judgment no 292653 W rendered in United States of America on 20/08/2010. [2] As it was explained by the lawyer pleading on behalf of Robert Sussman in the exparte application and within its analysis in the chamber of the counsels on 20/01/2014, Buhuru Pierre Celestin, the counsel, states that the judgment nº 292653 rendered in United States of America on 20/08/2010 which Robert Sussman won against Mwangacucu Hizi Edouard, Umubera Mwangacucu and the

company MH International to jointly pay to him 2,239,428.95 USD and that judgment has become executable and it has started being enforced in the United States of America by selling Mwangacucu Hizi Edouard’s house worth to 150,000.00 USD. Buhuru Pierre Celestin, the counsel, goes on saying that during this period Mwangacucu Hizi Edouard and the company MH International exported the minerals of coltan through the country of Rwanda, he gives an example of the house which is located in Imena Village, Kiyovu Cell Nyarugenge Sector, with the shares in UNGUKA Bank Ltd, thus since there is coltan which is still on the way which may bear the enough payment which the company MH International is exporting abroad, the plaintiff requests an urgent court decision preventing this coltan to cross Rwandan boarders and restricting the sale of any valuable properties belonging to the defendants already identified. [3] The evidences by which Buhuru Pierre Célestin, the counsel, supports his client’s request to the court, include what he calls the expedition of the judgment of the Circuit Court for Montgomery County condemning MH International and Mwangacucu in principle for 2,293,428.95 USD plus the annual interests of 6% per year from 30 April 2010, the authentication of the judgment and its expedition by the competent diplomatic procedure, the authorization of the exportation of more than 23 tons of coltan, the proof that MH International belongs to Mwangacucu, « L’expedition du Jugement of the Circuit Court for Montgomery County condamnant MH International et les Mwangacucu en principal à USD 2,293,428.95 plus les intérêtsannuels de 6% par an depuis 30 avril 2010, L’authentification de cejugement et son expedition par voiediplomatiquehabilitée,

Page 3

l’aurorisationd’exportation de plus de 23 tones de coltan, la preuveque MH International appartient à Mwangacucu ». [4] Legally the applicant says that with regard to the basis and the urgency of his request, the basis is on the article 324 and 325 of CCCSAP, while with regard to the jurisdiction of the Commercial High Court, it bases on the article 13 in its paragraph 1 up to 4 of the Organic Law N° 06/2012/OL of 14/09/2012 determining the organisation, functioning and jurisdiction of commercial courts since the requirements for the rendered judgment in a foreign country be executed in Rwanda it will be early be analyzed by the court. While with regard to the urgency of requests of the plaintiff Buhuru, the counsel, adds that the truck which carries the coltan that he wishes to be seized might have crossed Rwanda and reached Dar Es Salam that it could not be possible or it may be hard for the Commercial High Court to execute the decision it would take of accepting the judgment rendered in the country be enforced in Rwanda. [5] The court finds the issues to be analyzed in this case are the following: 1. Whether this case is connected to another case which has been already seized with court got in which Robert Sussman sued Mwangachuchu HIZI Edouard, the court needs to know whether it is possible for Robert Sussman to use another procedure of exparte application to request the seizure of the properties for whom he claims to have won while before this court there is another case RCOM 0019/13/HCC to has to be heard in which Robert Sussman sues one among the three he claims to have defeated he requests that the judgment in which he won abroad be authorized to be executed in Rwanda (exequatur).

2. Whether this case is independent and not connected to the one mentioned above which has not been decided yet by this court, to know whether the jurisdiction of the Commercial High Court of analyzing the matter in the first instance has basis. II. ANALYSIS OF LEGAL ISSUES Whether this case is connected to another case which has been already seized with court got in which Robert Sussman sued Mwangachuchu HIZI Edouard, the court needs to know whether it is possible for Robert Sussman to use another procedure of exparte application to request the seizure of the properties for whom he claims to have won while before this court there is another case RCOM 0019/13/HCC to has to be heard in which Robert Sussman sues one among the three he claims to have defeated he requests that the judgment in which he won abroad be authorized to be executed in Rwanda (exequatur). [6] Within the explanations he gave to the judge on 20/01/2012, Buhuru, the counsel, was asked why he used this procedure of exparte application while he already knows that he assists Robert Sussman within another case RCOM 0019/13/HCC, where after the hearing on the objection raised by the defendant relating to the guaranty which was required to the foreigner Robert Sussman before the reopening of the case, the court has told to the parties that the decision thereon would be rendered on 24 January 2014; he responded that it was for fear of that the case RCOM 0019/13/HCC may delay to get decided and he opted to request for the provisional seizure on the movable and immovable properties which are located in

Page 4

Rwanda or which pass through Rwanda for them to be seized waiting for the case RCOM 0019/13/HCC to get decided. [7] When he was asked whether what he requested in this application would not have been done through the claim of summary procedure connected to RCOM 0019/13/HCC and their adverse party in this case gets the opportunity to defend himself on the seizure which is requested on his properties, Buhuru, the counsel, responded that he chose to use this procedure since he knows that the exparte application is similar to the summary procedure claim, and that within the exparte application the existence of another case is not necessary. However, Buhuru, the counsel, adds others which bring the confusion to this court where he says that in lodging the exparte application it is not the one who follows up the case RCOM 0019/13/HCC which is already before this court, and that this case is not the principal case to this exparte application. [8] Basing on the explanation given by the one who pleads on behalf of the one who made an exparte application, this court finds that in case Robert Sussman has already lodged another claim requesting the authorization for the judgment he claims to have won abroad for it to be enforced in Rwanda to have access, within the legal procedure, to the properties of whom he claims to have defeated, he may not be allowed to escape his adverse party to

that case to look for another shortcut procedure of passing through the court to get to those properties without passing through the exequatur procedure which is provided for by the law and which has already started but no yet ended. The article 316 CCCSAP states that: «when there is need to have an interim ruling on a matter which requires urgent resolution, an action shall be filed in accordance with the ordinary procedure regarding principal suits, before an urgent applications judge in the jurisdiction where the urgent measure is required in accordance with ordinary summons procedure». This court realises that this article is the one which was suitable for what Robert Sussman needed of what the properties may be provisionally be seized and in urgent procedure since it is the one which at least allow to the owner of the property, who is his ordinary adverse party, get the opportunity of defending himself on his request. The exequatur procedure that Robert Sussman has started mainly aims at seizing the properties of whom he claims to have defeated, but this procedure requires him to first seek for the authorization for the judgment in which he claims to allow him to seize those properties, no other procedure he can get to seize those properties without passing through the exequatur procedure already started. [9] As explained within the preceding paragraph of this decision,

the court realises that Robert Sussman’s request may not be analysed without Mwangachuchu HIZI Edouard, who is adverse party to the case RCOM 0019/13/HCC, having defended himself on them, this means that he would have been sued through the contradictory procedure, thus Robert Sussman’s request does not match with the explanation of the exparte application as it is in the article 324 CCCSAP mostly where it ends stating that this procedure is only applied on matters which do not necessarily require the court to summon the other party. Within this case, the court realises necessarily that Mwangachuchu HIZI Edouard has to be summoned, and defend himself on the requirements before the judge decides on them, but since Robert Sussman did not sue him, this court realises that his application may not be admitted and be analysed in merits.

Page 5

Whether this case is independent and not connected to the one mentioned above which has not been decided yet by this court, to know whether the jurisdiction of the Commercial High Court of analyzing the matter in the first instance has basis. [10] Since there is where it got confused, this court heard Buhuru, the counsel, responding by contradicting what he has said before that this case may not be considered that it is connected to RCOM 0019/13/HCC; rather after getting the provisional seizure he requests he will lodge another claim within the period not exceeding 48 hours, this court to get the truth on that and wanted to know whether really that of being seized after having decided on the provisional seizure may legally be possible and analyze the provisions of the law on its jurisdiction and relates it with the current situation on the subject matter of the case. [11] The article 13 of the Organic Law n° 06/2012/OL of 14/09/2012 determining the organisation, functioning and jurisdiction of commercial courts in explaining the jurisdiction of the Commercial High Court basing on the subject matter and clarifies it differentiating its jurisdiction in the first instance and its jurisdiction in the appeal instance. This court finds what Robert Sussman has seized with this court up to now and what he says that he will seize with it within 48 hours in case he is granted the seizure

he requests, in no way it will be possible to be called the claim that this court may analyse in appeal instance. He remain with no other procedure for claiming in the first instance than requesting for the enforcement in Rwanda of the judgment in which he claims to have won against whose properties he requests to be seized, this procedure is the one which has already stared in the case RCOM 0019/13/HCC at the extent that this court finds that Robert Sussman may starts no other procedure than continuing that of RCOM 0019/13/HCC and in case he needs urgent decisions before deciding the case RCOM 0019/13/HCC, he requests it within this case through the legal procedure and which accepts that his adverse party be granted the opportunity and time for defending himself on them within the hearing. This also proves that Robert Sussman’s exparte application may not be admitted and the court takes no time to analyze it in merits of the basis of the seizure of the properties it has been seized with. III. THE DECISION OF THE COURT Due to all those grounds mentioned above, the Commercial High Court: [12] Declares inadmissible Robert Sussman exparte application since it does not meets the legal requirements for it to be lodged in the procedure it was lodged as explained above; [13] Condemns Robert Sussman to pay the court fees in this case which amounts to 4,450 Frw.