RWANDA REVENUE AUTHORITY (RRA) v. NGOMANZIZA

# RWANDA REVENUE AUTHORITY (RRA) v. NGOMANZIZA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-06-26 - Case/document no.: RADA 0044/13/CS - Collection: Supreme Court

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RWANDA REVENUE AUTHORITY (RRA) v. NGOMANZIZA [Rwanda SUPREME COURT – RADA 0044/13/CS (Mutashya, P.J., Munyangeri and Gakwaya, J.) June 26, 2015] Laws regulating administrative procedur – Preminary objection– Inadmissibility – The objection of inadmissibility is a ground of public order which can be raised at any time during the action even on the appellante level. Facts:After being dismissed from the post of Senior objections and Appeals Officer, on the allegations that he caused a loss to RRA because of not fulfilling his duties, Ngomanziza wrote to the Comissioner General of RRA but did not get a response , then he took his grievance to the Public Service Comission consequently that commission wrote to RRA informing it that basing on the gravity of the fault they should have suspended him for three months but because he has been stopped from work for more than that period he should be immediately reinstated, in his response the Commissioner General informed the commission that their wish cannot be implimeted because its contrary to the laws regulating RRA and are the ones they applied for him to be dismissed Ngomanziza seized the High Court claiming to be reinstated and be given his entitlement, That Court ordered that he be re instated on his post or be given another post equivalent to that and that RRA will pay 20000Frw each day it does not execute that final decision and also awarded him various damages RRA appealed in the Supreme Court on the ground that the judge disregarded the gross negligence and also the penalty forcing the execution together with the damages are unfair. In the appeal submissions of RRA, it raised a preminary objection of law concerning the inadmissibility of Ngomanziza’s claim in the High Court NGOMANZIZA claim that he did not commit gloss negligence and the objection raised by RRA has no meritbecause that matter was never raised on the first instance level, thus raising it on appeal is altering the subject matter on the appellante level. In its defence, RRA submit that its not prohibited to raise a preminary objection on the apellante level because the ground of is of public order which can be raised at any time of the case . Facts: The objection of inadmissibility is a ground of public order which can be raised at any time during the action even on the appellante leve. Ngomanziza’s claim was not to request for the annullation of the administrative decision but to request the court to force RRA to execute the decision of the Public Service Commission ,for the execution, thus nothing prevents his claim to be admitted in the High Court even if it was instituted after six month.

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Preminary objection overruled; Case in merit to procceed; Court fees suspended.. Statutes and Statutory instruments referred to: Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure article 336Law n°18/2004 of 20/6/2004 relating to the civil, commercial, labour and administrative procedure article 94 Cases reffered to: Urubanza Bugirimfura C. Kigali City et al. RADA 0033/11/CS renedered by the Supreme Court.. Judgment BACKGROUND OF THE CASE. [1] Ngomanziza Henri was an employee of RRA since 2002, but on department of customs was given a dismissal letter on the ground that he did not fulfil his responsibilities which caused RRA a loss of 61.628.241 Frw in tax and penalities which were on PV no86/PCA/09. [2] Ngomanziza Henri wrote to the General Commissioner RRA requesting for redress but all was in vain and appealed in the Public Service Commission, which demonstrated that Ngomanziza Henry and Bugingo should have been sanctioned with a suspension of 3 month depending on the gravity of the fault but because they have not been stopped for more than that they should return to work not more than 1/6/2011, in his response the Commissioner indicated that the decision to re instate him to his post is impossible because it is contrary to the law regulating RRA and its the one which was applied. [3] Ngomanziza Henri lodged a claim in the High Court requesting the court to order for the annulations of the dicision to dismiss him and be given all his entitlement. That Court squashed the decision dismissing Ngomanziza Henri taken by the Commissioner General of RRA on 28/07/2010 and ordered that he be re instated on the his post or be given another post equivalent to that and also ordered for a penalty forcing the execution of 20000Frw every day which alapse without the final decision being executed and RRA to pay him . 611.357 Frw x the month he spent without working beginning from 01/06/2011 up to the deliverly of the judgment.

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[4] The Court opined that the dicision to dismiss Ngomanziza was unlawful because he commited no fault for him to be dismissed, hence the Court finds that he has to be awarded dameges for unlawful dismissal. [5] RRA was not contented with the ruling and appealed in Supreme Cour , in its submission it raised a preminary objection of inadmissibility of Ngomanziza’s claim in the High Court on the ground that he lodged it out side the provided time frame . The court first resolved that preminary objection.. [6] The hearing was held on 19/05/2015, NGOMANZIZA Henri assisted by Counsel NSENGIYUMVA Abel and RRA assisted by Counsel MUGIRE Joseph. THE ANALYSIS OF THE LEGAL ISSUE Wether the preminary objection raised by RRA is admissible in the Supreme Court. [7] The Counsel for RRA avers that it is not barred to raise some objection on the appellante level because the ground for inadmissibility of a claim is a ground of public order which can be raised at whatever stage the action has reached, thus the claim should not have been admitted because Ngomanziza lodged the claim outside the time frame, even though RRA did not raise it , but it was in the judge’s obligation to raise it himself without regarding were the case has reached. [8] The cousel for Ngomanziza Henri adduce that the objection was raised by RRA has no merit because it never raised the matter in its submission on the instance level, thus raising it on the appeal level is altering the subject matter on the appellante level.. THE VIEW OF THE COURT. [9] Article 94 of the Law n°18/2004 of 20/6/2004 relating to the civil, commercial, labour and administrative procedure , which was in force at the time of instating the claim provides that « The reason for the inadmissibility of a claim is any argument requesting for inadmissibility of a claim without being considered on merit such as not having the status, capacity, and interest to file a claim, prescription of the claim, expiry of the prescribed period to file a claim, a decided case or non payment of court fees. », and article 95 of that law provides that the grounds for the inadmissibility of a claim can be raised at any level of the proceedings , apart from the power of the judge to fine the party which didnot raise those gr of the ounds in time for the seek of delaying the case1». [10] Pursuant towhat is provided by those articles, the Court finds that nothing bars RRA from raising the objection of inadmissibility in this court, because it’s a ground for public order, thus its sustained. . Wether the claim of NGOMANZIZA Henri should not have been admitted. 1 Judgmen RADA 0033/11/CS rendered by Supreme Court between Bugirimfura C. Kigali City et al.

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[11] The counsel for RRA adduce that the purpose of Ngomanziza was to request for the removal of the dismissal decision so that he can be re-instated on his former post as it was requested in a letter from the Public Service commission dated18/05/2011 . [12] He further argue that the claim of Ngomanziza contravenues article 336 of the Law nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, hence his claim should not have been admitted because it was instituated out time frame ,because he had to lodge it not later than 5/3/2011 basing on the letter he wrote to the Commissioner General on 05/08/2010 requesting for redress but did not get a response or he had to lodge it not later than 30/11/2011, basing on the letter the Commissioner General wrote to th e public service commission. [13] The Counsel for NGOMANZIZA Henri argue that NGOMANZIZA Henri did not delay to lodge a claim as alleged by RRA, because alleging that the Commissioner did not reply him and instead in his letter of 03/09/2010 he informed NGOMANZIZA Henri that he will give him aresponse soon because he is still examining his appeal .. [14] He further argue that in this case article 336 n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure should not have been used because NGOMANZIZA Henri did not sue against the decision of the commissioner General which was appealed in the appeals committee in the court instead he appealed the decision of that committee forcing RRA to execute the decision of the Public Service Commision of 17/05/2011. THE VIEW OF THE COURT [15] Article 336 of n° 21/2012 of 14/06/2012 2012 relating to the civil, commercial, labour and administrative procedure provides that “the action for annulment shall be accepted only if it relates to an explicit or implicit decision of an administrative authority. Before filing a claim, the aggrieved party who is against the administrative decision shall be required to first lodge an informal appeal with the immediate superior authority vis-à-vis the one who took the concerned decision. The authority shall be required to respond in a period of one (1) month which runs from the date he / she received the informal appeal. If he / she do not respond, the request shall be considered as if it is rejected. In case the applicant is not satisfied with the decision, he/she has a period of six (6) months to file a claim which runs from the date when he/she received the response, and if there is no response, such a period shall start running after one (1) month mentioned in paragraph 3 of this Article. ” [16] Regarding the action for the annullation of the administrative decision (recours en annulation)are provided by article 336 mentioned above , The Court finds that the claim instituated by Ngomanziza in the High Court its indicates that the purpose was to request the court to force RRA to execute the decision of 17/05/2011 of the Public Service Commission but not to annul the decision of the Commisioner General as provided in 336 mentioned above

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[17] The Court is of the view that the subject matter in the High Court was not to annul the administrative decision as claimed by the RRA and also to demonstrate that Ngomanziza should not have sued to the courts since his appeal was lodged late because he instituated his appeal after six month as provided by article 336 mentioned above , instead that article provides for the employee who lodged an administrative appeal but do not get a satisifactory response is the one who has six month to seize the courts, this differs from the claim Ngabonziza Henri lodged in the High Court because it is evident that he wasconteted with the decision of the Public Service Commision and sued in the court requesting that RRA should be forced to execute it. . [18] Those means that eventhough Ngomanziza first lodged an administrative appeal against the decision against him by the commissioner General to the RRA and later to the Public Servuce Commision, nothing would bar him from seizing the court as long as the claim was not intended to request for the annullation of the decision of the Commissioner general of RRA, his claim had to be admitted as long as its purpose was to request for the execution of the decision of RRA. . [19] Parsuant to the explainations given above,the Court finds that the objection raised by the counsel for RRA of inadmissibility of Ngomanziza’s claim is over ruled, the hearing in merit of RRA’s appeal should proceed.. VIEW OF THE COURT [20] The preminary objection raised by RRA is overured ; [21] Declares that the case in merit will continue on 22/09/2015 ; [22] Court fees suspended.