RWANDA DEVELOPMENT BOARD (RDB) v. SUCCESSION OF MUBUMBYI

# RWANDA DEVELOPMENT BOARD (RDB) v. SUCCESSION OF MUBUMBYI

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-11-28 - Case/document no.: RADA 0050/12/CS - Collection: Supreme Court

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Rwanda Development Board (RDB) v. Succession of Mubumbyi [Rwanda SUPREME COURT – RADA 0050/12/CS (Mutashya, P.J., Rugabirwa and Gakwaya, J.) 28 November 2014] Aadministrative procedure – Admissibility of intervener application – For the person intervening in the case aiming at being awarded some rights must have the proper right separate from the principal claim in the sense that those rights would allow him to seize the court alone, have capacity and interest that bestows him/her with the right to intervene in that case and his/her claim has to be connected with the principal claim – The law n° 21/2012 of 14/06/2012 relating to civil, commercial, labor and administrative procedure, article 113, 175 and 119. Facts: The heir of Mubumbyi sued the Rwanda Development Board (RDB) before the High Court claiming that it pays them 1385 tons of cement or its equivalent in terms of money their father paid 36,000,000 Rwf on the account of CIMERWA on 07/07/1994 and damages. That court ordered RDB to pay that cement or its equivalent equal to 235,450,000 Rwf and damages and proceedings fee as well. RDB appealed before the Supreme Court asserting that the heirs of Mubumbyi do not produce the contract of sale. Kantengwa intervened in this case requesting that RDB gives her 30% of the proceedings of the debt of cement that they would gain in this case, and she requested this basing on the affidavit of the council of Mubumbyi indicating that that family accepted that amount of money due to the fact that they took from her the car that she bequeathed from her husband, twenty thousand United States dollars (USD 20,000) that she was not given by the heirs of Mubumbyi she was bequeathed in the will made by Mubumbyi Manasseh in 19996. At the beginning of the hearing, the heirs of Mubumbyi raised an objection aiming at the dismissal of the of intervener application lodged by Kantengwa asserting that she has no capacity and interest that may allow her to intervene therein since she was not legally married with Mubumbyi and her application is not related to the principal claim, the Supreme Court has no jurisdiction to hear that application at the first instance and the will made by Mubumbyi is invalid, as it infringes on the rights of heirs and the affidavit of the family council also should not be considered as it was signed by all family members. Kantengwa asserts that her application should be admitted since it is related to the principal claim with respect to USD 20,000, with regard to the will she asserts that it is valid since by the time it was made in 1996 there was no law in place but it was the custom that was applicable which would allow the husband to bequeath her his entire property and in addition the affidavit was signed by all family members. Held: 2. The person seeking an intervention in the case aiming at being awarded some rights must have the proper right different from the principal claim in the sense that those rights would allow him to seize the court alone, must have capacity and interest that give him/her the right to inetervene in that case and his/her claim has to be connected with the principal claim

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2. The fact that Kantengwa cannot seize RDB on her own on the claim that it gives her 30% of the proceeds of the debt of cement and USD 20,000 indicates that she has no capacity to intervene in this case. 3. The application of Kantengwa to intervene in this case is not interconnected with the principle claim but it confuses itself with the initial claim, since they all request that the Rwanda Development Board (RDB) award them the amount of money emanating from the cement debt and it is an independent claim in relation to the evidence they base on claiming that amount. The objection raised against the Intervener application of Kantengwa has merit. Rejects the intervener application of Kantengwa, the hearing between Rwanda Development Board (RDB) and Mubumbyi heirs will resume. Statutes and statutory instruments referred to: The law n° 21/2012 of 14/06/2012 relating to civil, commercial, labor and administrative procedure, article 113, 175 and 119 Doctrine: Albert FETTWEIS, “Manuel de Procédure Civile“, 2 ème Edition, Bruxelles, 1987, p.411 SERGE GUINCHARD, Droit et Pratique de la Procédure Civile, 5 ème Edition,Dalloz, Paris, 2006-2007, p.554. . Judgment BACKGROUND [1] The heirs of Mubumbyi Manasseh mentioned above brought the claim Rwanda Development Board (RDB) before the High Court, Kigali, request that it pay them 1385 tones of cement or the amount of their equivalent plus the aforementioned damages since their father Mubumbyi Manasseh paid them 36.000.000 Rwf deposited on the account of CIMERWA in Bank of Kigali on 07/0/1994, yet he died on 25/05/1998 before their delivery. [2] The High Court rendered the judgment RAD 0146/11/HC/KIG on 12/09/2012, and ordered RDB to pay the family of Mubumbyi Manasseh composed of Bimenyimana Xavier, Twizerimana Ananias, Icyimanimpaye Esther, Mukandayisenga Solange, Uwamariya Christine, Nyirahabimana Thamari, Niyibizi Jean, Ntakirutimana Samuel, and Niyitegeka Elson represented by Mukankusi Monique 1385 tones of cement or their equivalent in terms of money worth 235, 450, 000 Rwf equal to price of the cement on the day of the pronounce of the judgment and pay them the proceedings fee equal to 1,000,000 Rwf. [3] The RDB appealed against this judgment before the Supreme Court asserting that it cannot give the heirs of Mubumbyi Manasseh stated above 1385 tones of cement since they have no sale contract indicating CIMERWA has accepted the offer of Mubumbyi Manassseh, but in case the Court may find it otherwise it should award them 36,000,000 Rwf that Mubumbyi deposited on the account of CIMERWA excluding interest and damages claimed in this case.

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[4] Kantengwa Epiphanie voluntarily intervened in this case claiming that institution pay her 30% of the debt of cement that they will be awarded in this case, she claim this basing on the affidavit of the family counsel of Mubumbyi Manasseh of 24/02/2002 indicating that family accepted to pay her that amount since it teaken her car of Benz brand with plate 2628 that was bought by her husband and pays her 20,000 USD that she was not paid by his heirs basing on the will made by Mubumbyi Mnasseh on 25/06/1996. [5] This case was heard in public on 28/10/2014, the RDB was in default yet it ws summoned in accordance with the law Counsel Niyondora Nsengiyumva and Counsel Kuradusenge Jacques were representing the heirs of Mubumbyi Manasseh stated above, Shema Adamu, Nsanzamahoro Abdounour and Uwitonze Jehady represented by Counsel Ruberwa Silas and Kantengwa Epiphanie represented by Counsel Ndahimana Jean Bosco. [6] At the beginning of the hearing, the counsels for the heirs of Mubumbyi Manasseh raised an objection relating to the dismissal of the voluntary intervention of Kantengwa Epiphanie since she does not have capacity and interest to intervene in this case since she was not leaglly married with Mubumbyi Manasseh and the fact that her claim is not related to the principal claim instituted by the heirs of Mubumbyi Manasseh stated above. II. THE LEGAL ISSUE AND ITS ANALYSIS To know whether the claim lodged by KANTENGWA Epiphanie meets the legal requirements of admissibility [7] Counsel Niyondora Nsengiyumva and Counsel Kuradusenge Jacques, the counsels of Mubumbyi Manasseh’s heirs asserts that the intervention of Kantengwa Epiphanie should not be admitted basing on article 2 of the law No 21/2012 of 14/06/2012 relating to civil, commercial, labor and administrative procedure since she does not have capacity to intervene in this case as she was not legally married with Mubumbyi Manasseh and they did not give birth to any child as Kantengwa Epiphanie concedes in her court submission, instead they are the heirs of Mubumbyi Manasseh who have the capacity to institute the claim against the RDB for the debt of cement it owes them. [8] The counsels Mubumbyi Manasseh’s heirs assert that another cause that leads to the inadmissibility of claim of Kantengwa Epiphanie is that she does not have the legitimate interest to intervene in this case since her interest is yet to be born as the recovery of the debt that institution owes them is yet to mature as they are to know if they win the case, instead her interest will be born by the time of recovery of the debt they will have been entitled against it,therefore Kantengwa Epiphanie will bring the claim once those who accepted to give her 30% of the subject matter in this case will have refused to pay it to her. [9] They add that another ground of inadimissibility of the intervention of Kantengwa Epiphanie in this case is that it was instituted in violation of article 119 of the law No 21/2012 stated above because this claim is not related to the principal claim. They explain that Kantengwa Epiphanie intervened in this case claiming to be awarded 20,000 USD plus 30% of the amount arising from the debt of cement subject matter of this case, she base this on the will

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made by Mubumbyi Manasseh on 25/06/1996 and the affidavit of the family consel of Mubumbyi Manasseh of 24/02/2002, but her claim should not be admitted since it si not related to the claim instituted by the heirs of Mubumbyi Manasseh claiming that the RDB pay them 1385 tones of cement plus their damages as indicated in their claim stated above. [10] The counsels of Mubumbyi Manasseh’s heirs also asserts that the claim of Kantengwa should not be adimitted because the Supreme Court is not competent to hear at the first instance claims relating to execution of a will that Kantengwa Epiphanie instituted in it at the first instance pursuanat to article 119 of the law no 21/2012 sated above, instead if Kantengwa Epiphanie found that that will was valid she should have instituted in another court that is competent. [11] They explain that the olographic will made by Mubumbyi mansseh on 25/06/1996 indicates that he bequeathed to Kantengwa Epiphanie the car of Benz brand with plate 2628 and 20,000 USD is not valid as it infringes on heirs in their property. Another ground on which this will should not be considered valid is that it is similar to agency that Kantengwa Epiphanie was given by Mubumbyi Manasseh to recover debts, of which she was paid and that mandate was terminated by the death of the principal pursuant to article 544 CCB III. [12] In conclusion, they assert that the affidavit of the family counsel of Mubumbyi Manasseh of 24/02/2002 she bases on in her intervention in this case claiming that she be awarded 30% of the amount arsing from the debt of cement subject of litigation, should not be considered valid since it was not inked by the members of the family of Mubumbyi Manasseh, but it was signed by Mukankunsi Monique and Kantengwa Epiphanie who are not legally married with Mubumbyi Manasseh. They add that the fact that that affidavit was signed by three children that Mubumbyi Manasseh gave birth with Mukankusi Monique parties to this case, those are Nyirahabimana Thamari, Icyimanimpaye Esther and Twizerimana Ananias cannot be the basis for its validity since the other children of Mubumbyi Manasseh did not give them the mnandate to represent them in the signature of that will. [13] Counsel Ruberwa Silas, the counsel of Shema Adamu, Nsanzamahoro Abdounour and Uwitonze Jehady asserts that Kantengwa Epiphanie has no capacity to intervene, since she the spouse of Mubumbyi Manasseh, and she is not his heir, instead the children of the decujus Mubumbyi Manasseh are the ones with right to institute the claim against the aforementioned institution the debt of cement stated above left by their father. [14] He asserts that another ground indicating that the claim of Kantengwa Epiphanie should not be admitted is that the Supreme Court does not hear at the first instance the case relating to the succession. Besides, the claim of Kantengwa Epiphanie is not related to the principal claim instituted by the heirs of Mubumbyi Manasseh aming at requesting that the aforementioned institution pay them the debt of cement stated above. [15] In conclusion, he asserts that Kantengwa Epiphanie should not be admitted to inetervene in this case basing on the case RS/Inconst/Pen 0003/10/CS between Gatera Johson and Kabalisa teddy rendered by the Supreme Court on 07/01/2011 which ruled that those who live as a husband and wife without having been legally married shares the property once of them decides

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to become legally married, because Kantengwa Epiphanie did not prove that there is the property he earned alongside the decujus Mubumbyi Manasseh. [16] Counsel Ndahimana Jean Bosco, the counsel of Kantengwa Epiphanie asserts that his claim aiming at the intervention in this case should be admitted and thus be examined pursuant to article 39, paragraph 2 of the law No 59/2008 of 10/09/2008 preventing and punishing any kind of gender based violence1 and the judgment RS/Inconst/Pen 0003/10/CS stated above because she has capacity and interest to intervene in it because she lived with Mubumbyi Manasseh as the husband and wife for a long time and earned assets even though they did not give birth to any child. [17] She explains that even if Kantengwa Epiphanie cannot bring the claim against RDB on his own recovering the debt of cement stated above since she is not the heir of Mubumbyi Manasseh, she however intervened in this case to protect her interests equal to 30% of the amount that will arise from the debt claimed in this case and her interest was born on 24/02/2002, the day the members of the family of Mubumbyi Manasseh resolved that they will jointly recover debts and award her 30% of the amount recovered, but they did give her 20,000 USD bequeathed by her husband paid by Ndayambaje and Mvano. [18] He further asserts that the claim of Kantengwa Epiphanie should be admitted since it is related to the principal claim instituted by the heirs of Mubumbyi Manasseh with regard to 20,000 USD stated above. [19] She explains that the will made by Mubumbyi Manasseh on 25/06/1996 is valid since by the time it was made there is no law her husband breached since there was no law to that effect but he abode by the custom that allowed the person to bequeath their entire property depending on how they lived together, as the custom did not provide for the succession reserve. [20] He further explains that the affidavit of the family council of Mubumbyi Manasseh on 24/02/2004 is valid because it was signed all members of his family, and they resolved that Kantengwa Epiphanie will be awarded 30% of the amount that will be recovered from the debts that they will be paid including the debt of cement subject of litigation in this case. [21] Kantengwa Epiphanie explains that that affidavit is valid since she signed it alongside Mukankusi Monique and the three children that Mubumbyi Manasseh give birth with Mukankusi Monique, those are Nyirahabimana Thamar, Twizerimana Ananias and Icyimanimpaye Esther plus other members of the family including the elder brother of the decujus called Mudeyi Modeste and his cousin and other different witnesses and the fact that Shema Adamu, Nsanzamahoro Abdounour and Uwitonze Jehady who intervened in this case did not sign on it since they were yet to be declared the children of the decujus Mubumbyi Manasseh. 1That article state that “If a person who has been illegally married want to get legally married and he /she was living with many husbands/wives, he shall first of all share the commonly owned belongings with those husbands/wives equally.

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[22] In the end, Counsel Ndahimana Jean Bosco the counsel of Kantengwa Epiphanie asserts that Nyirahabimana Thamar, Nsanzamahoro Abdounour and Uwitonze Jehady parties to this case cannot critise this affidavit whereas it was signed by their mother Mukankusi Monique basing on the principle that no oen can invoke his or her own turpitude. THE VIEW OF THE COURT [23] Article 113 of the law No 21/2012 of 14/06/2012 relating to civil, commercial, labor and administrative procedure provides for that “Voluntary intervention is done when a person, on his or her own volition, intervenes in a case where he or she is neither a plaintif nor a defendant in order to have it declared that the claim of the litigation belongs to him or her or to make sure that his or her interests are not compromised by the court’s decision.”. And article 114 of that law provides for that “In order for his/her claim to be admitted, the intervening party must prove legitimate interest, his/her direct personal material or moral interest.” Again, article 119 of the law earlier stated provides that “Forced or voluntary interventions shall be admissible only if: 10 they are interconnected with the original claim; 20 their scope is within the jurisdiction of the court seized with the original claim.” [24] And the legal scholar Akbert FETTWEIS in his book entiltled Manuel de Procédure Civile has explained that the person who intervenes in the case with intent to be awarded something (aggressive intervention) must fulfil the following conditions: 1° he/she must have his/her own right not based on the principal action to the extent that that right cannot prejudiced by any effect that may occur upon the main claim. 2° he/she must have capacity and interest allowing him or her to intervene in that case. 3° the interventionary claim must be interconnected with the the main claim to the extent that they deserve to be heard jointly to avoid contradictory rulings. 2. [25] Again, the legal scholar Serge Guinchard in his book entitled Droit et Pratique de la Procédure Civile has explained that for the claim of intervention to be admitted the person who intervened must have capacity and interests allowing him or her the right to take the decision to seize the court on his own and their claim can continue to be heard even when the principal claim is no longer there due the fact that the person who instituted has desisted it or it was dismissed. [26] With regard to the capacity of Knatengwa Epihanie to institute the claim against RDB requesting that it gives her the amount resulting from the debt of cement subject of this case, the teachings of legal scholars stated above, indicates that the person allowed to intervene in other’s case is the one with the capacity that would have allowed him to institute the claim on his orher own the person he /she opposed to in the intervention claim. 2“L’intervention agressive exige: 1° que L’intervenant réclame un droit propre, distinct de celui des parties en cause. Il prend position dans le débat de manière indépendante, sans lier son sort à celui d’une des parties originaires. L’intervention agressive est une demande autonome, distincte de la demande principale. 2° L’intervenant doit justifier des conditions de recevabilité de son action: qualité et intérêt. 3° L’intervention doit être unie à la demande principale par un lien de connexité (…). On considère qu’il interdépendance suffisante entre la demande principale et la demande incidente dès qu’il paraît souhatable d’éviter une contrariété de décisions“,par Albert FETTWEIS, “Manuel de Procédure Civile“, 2 ème Edition, Bruxelles, 1987, p.411.

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[27] Basing on those teachings, the Court finds that the fact that Kantengwa Epiphanie could not on her own institute the claim against RDB requesting that it give her 30% of the amount resulting from the debt of cement subject matter in this case and 20,000 USD because she is the heir of Mubumbyi Manasseh as she herself concedes before the Court, it is obvious that she has no capacity to intervene in this case, but instead are the heirs of Mubumbyi Manasseh who have this capacity since are them who have the right recover the debt of cement subject matter in this case bequeathed by their parent. [28] With regard to knowing whether Kantengwa Epiphanie has interest that would allow he rto intervene in this case, pursuant to article 113 of the Law No 21/2012 stated above, the person who voluntarily intervene in a case of others is the one who enters it in order to avoid that the court decision infringe on their right. [29] Basing on those explanations, the Court finds that the decision that will be taken in this case between RDB and the heirs of Mubumbyi Manasseh with regard to the debt of cement subject matter of it will not infringe on the interest of Kantengwa Epiphanie because there is nothing on which it will prejudice her, which is therefore obvious that there is no interest that would allow her to intervene in this case. [30] The court finds that another ground that indicates that Kantengwa Epiphanie has no interest that would allow her to intervene in this case is that she cannot oppose it as a third party after its pronounce since pursuant to article 175 of the law No 21/2012 stated above the person who opposes the judgment of others is the person who has never been the party to it but who seeks that it be nullified because it prejudices him/her, however, it is not the case for Kantengwa Epiphanie who is not the heir of Mubumbyi Manasseh as explained above, it is obvious that she has an independent action (autonomous action) with regard to the fact that she can would institute her autonomous claim at any time she would wish against the members of the family of Mubumbyi Manasseh basing on the will drawn by Mubumbyi Manasseh on 25/06/1996 and the affidavit of 24/02/2002 on which she bases her intervention in this case. [31] With regard to knowing whether there is interconnectedness between the claim of intervention of Knatengwa Epiphanie and the principal claim instituted by the heirs of Mubumbyi Manasseh, the provisions of article 119 stated above jointly considered with the teachings of legal scholars stated above indicating that both claims have to be interconnected in that they desrve to be heard jointly to avoid contradictory judgments. [32] With regard to this case the dossier indicates that the heirs of Mubumbyi Manasseh instituted the claim against RDB requesting that it pay them 1385 of cement or their equivalent in terms of money their father Mubumbyi Manasseh bought in CIMERWA but he died before the it e delivered to him as indicated by evidence in the dossier, the bankslip of deposit of 07/07/1994. [33] However, the dossier indicates that Kantengwa Epiphanie intervened in the case RADA 0050/12/CS requesting the RDB gives her 30% of the amount they will be awarded in this case resulting from the debt of cement stated above plus 20,000 USD and she requests that basing on the will drawn by Mubumbyi Manasseh on 25/06/1996 and the affidavit of the family council of Mubumbyi Manasseh of 24/02/2001 allowing her to be given that amount.

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[34] Basing on those explanation, the Court finds that the claim of intervention in this case instituted by Kantengwa Epiphanie should not be admitted since it does not meet the requirement set under article 119, 1° of the law stated above because on one hand it is not interconnected with the principal claim, but it conforms to it in substance since all of them request that the RDB pay the amount resulting from the debt of cement, on the other hand it is an independen t claim with regard to the evidence they base on request that amount since the heirs of Mubumbyi Manasseh claims it basing on the contract of sale, yet Kantengwa Epiphanie request it basing on the will drawn by Mubumbyi Manasseh on 25/06/1996 and the affidavit of the family council of Mubumbyi Manasseh of 24/02/2002. [35] Basing on the foregoing laws and the teachins of legal scholars, the court finds that the claim of intervention in this case by Kantengwa Epiphanie must not be admitted because it does not meet the legal requirement as explained above. III. THE DECISION OF THE COURT [36] It holds that the incident raised by the heirs of Mubumbyi Manasseh aiming at the dismissal of the intervention of Kantengwa Epiphanie in this case is founded; [37] It holds to dismiss the claim of intervention in this case instituted by Kantengwa Epiphanie; [38] It holds that the hearing of the case between RDB and the heirs of Mubumbyi Manasseh will take place on 27/01/2015.