SENGOGA N’ABANDI v. AKARERE KA NYARUGENGE

# SENGOGA N’ABANDI v. AKARERE KA NYARUGENGE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-07-08 - Case/document no.: RADAA 0008/15/CS - Collection: Supreme Court

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SENGOGA N’ABANDI v. AKARERE KA NYARUGENGE [Rwanda SUPREME COURT – RADAA 0008/15/CS (Mugenzi, P.J., Mukamulisa and Gatete, J.) July 08, 2016] Law determining the jurisdiction of the courts – The jurisdiction of the Supreme Court – Awarding the based damages for determining the jurisdiction of the Supreme Court – The requested damages should not be based on in determining the jurisdiction of the Supreme Court in case after the disputes of their merit were not awarded – organic law Nº 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28(2)7o. Facts : Sengonga and his mates concluded a lease contract with Nyarugenge district of the stores locate in Nyabugogo taxi park, hat contract had period of 10 years, at the termination of that contract both contractors renewed till 01 September 2011 that must be terminated on August 2016. Nyarugenge district terminated that contract because it realised that the price they agreed on at contracting time did not reflect the current market. Sengoga and his mates did not satisfy with that termination, they filed a claim against the Intermediate Court of Nyarugenge in stating that the contract was illegally terminated because it was still premature and also there is no common interest which the district argues that it based on. Intermediate Court of Nyarugenge held that their claim has no merit, that the contract was legally terminated. The plaintiffs did not satisfy with that decision and they appealed against it at the High Court, also it ruled that the rulings of the appealed judgment sustains because by considering its nature which make it the administrative contract, due to its nature it gives to the Nyarugenge district the superior rights than those of appellant for terminating the contract in case there is a ground of common interest; it was not necessary to rely on the expiration law because it is not the subject matter, rather it is pleaded for terminating termination, especially that the common interest does not concern only the expropriation. Sesonga and his mates appealed with the Supreme Court stating that the judge of the High Court disregarded that all contracts concluded by the government are not named the administrative contract and he disregarded also that the contract was unlawfully terminated because it was premature terminated without the consent of both parties; and the Court may examine whether the contract was terminated for the common interest because they realised the fact that the district raised the price, it has no link with the common interest Nyarugenge district raised the objection for not admitting their appeal because it does not fall into the jurisdiction of the Supreme Court because of there is no 50,000,000Frw which were awarded in the appealed judgment or be determined by the judge after the case dispute; everyone among the plaintiffs filed independently a claim this also demonstrate that the appeal is not falling into the jurisdiction of this Court and furthermore the plaintiffs lost the case in two previous Court for the similar grounds. Sesonga and his mates defends in arguing that those objections are groundless because in considering the total amount of the damages they request are more that 50,000,000Frw, because

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all together are amounting to 159,300,000Frw, therefore due to that ground they realise that the appeal falls into the jurisdiction of the Supreme Court, whereas on what concerns with loosing the case for the similar ground at both courts is groundless since in case the issues examined in two previous Courts and the motive they rendered are not similar, because in determining whether the grounds are the same or different, what must be based on is the motivations which were given by the Court on the first and second instance. Held : 1. The requested damages should not be based on in determining the jurisdiction of the Supreme Court in case after the disputes of their merit were not awarded, thus the appeal of Sesonga and his mates does not fall into the jurisdiction of the Supreme Court because they were not awarded the damages which they requested for since Nyarugenge district did not commit any fault in terminating that contract. 2. In case the plaintiffs claim to be give the same thing and the defendant is the same there will be to join the claims and become one claim therefore to say that Sesonga and his mates must file independently a claim has no merit. 3. It is not still necessary to examine the other objection of that the parties lost the case for the similar grounds with both previous Courts, because as it already mentioned, the appeal did not comply with what are provided for by the law so that it should fall into the jurisdiction of the Supreme Court. Objection has merit. The court fees are equal to the expenses of the judgment. Statutes and statutory instruments referred to: Organic law Nº 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28(2)7o No cases referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] Sengoga Idrissa, Musabyimana Pauline, Musanabera Christine, Agaba Christine, Gasana Charles, Semutwa Augustin, Twagirimana Emmanuel, Mukangarambe Amelberga, Rwagatare Sam, Kabungo Omar, Mukantabana Zura, Hategekimana Josee, Moenback Hélène, Mugemangango Nadine, Uwayezu François, Cooperative Cotavonya represented by its president , Muhorakeye M. Claudine, the executive manager of Rwandafoam in its name, and Utamuliza Philomène concluded a lease contract of the stores locate in Nyabugogo taxi park, that contract had period of 10 years.

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[2] The agreed period between both parties expired, the contractors renewed till 01 September 2011 that must be terminated on August 2016. That contract was terminated by Nyarugenge district because it realised that the price they agreed on at contracting time did not reflect the current market. Sengoga and his mates did not satisfy with that termination, they filed a claim against the Intermediate Court of Nyarugenge in stating that the contract was illegally terminated because it was still premature and also there is no common interest which the district argues that it based on. [3] Intermediate Court of Nyarugenge rendered the judgment and held that their claim has no merit, that the contract was legally terminated. The plaintiffs did not satisfy with that decision and they appealed against it at the High Court, also it rendered the judgment on 25 September 2015 and ruled that the ruling of the appealed judgment sustains. [4] High Court in motivating its decision, it declared that the contract was lawfully terminated by considering its nature which make it the administrative contract, due to its nature it gives to the Nyarugenge district the superior rights than those of appellant for terminating the contract in case there is a ground of common interest. [5] It found also when the district had the superior right than the other side as it is provided for by the contract they entered into, nothing would prevent it to change the lease price, by basing on what reflected the market of leasing the houses, and also it was not necessary to make a consent with the other side for the procedural of terminating the contract. [6] The Court found that it is not necessary to rely on the expiration law because it is not the subject matter, rather it is pleaded for terminating termination, especially that the common interest does not concern only the expropriation. It decided that Nyarugenge district did not disregard firstly to consent on their will as it provided for by the contract, rather those were disregarded by the appellant because they are the ones who resorted to courts of law without passing through amicable settlement. [7] Sengoga Idrissa, Agaba Christine, Kabungo Omar, Moenback Hélène, Muhorakeye M. Claudine, executive manager of RWANDAFOAM and Semutwa Augustin appealed with the Supreme Court stating that the judge of the High Court disregarded that all contracts concluded by the government are not named the administrative contract and he disregarded also that the contract was unlawfully terminated because it was premature terminated without the consent of both parties. [8] Gashagaza Philbert, the Counsel for the appellant requested the Court to examine whether the contract was terminated for the common interest because he realised the fact that the district raised the price, it has no link with the common interest. [9] At the Supreme Court, Rwagatare Sam, Musabyimana Pauline, Musanabera Christine, Twagirimana Emmanuel, Gasana Charles, Mukangarambe Amelberga, Mukantabana Zura, Hategekimana Josée, Mugemangango Nadine, Uwayezu François and cooperative KOTAVONYA, in the behalf of its president, they also submitted the submission as they pleaded this case in the previous Courts.

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[10] The hearing was conducted in public on 24 May 2016, Sesonga and his mates are represented by Counsel Gashagaza Philbert together with Counsel Ntwari Justin, whereas Nyarugenge district is represented by State attorney Rubango Epimaque. [11] After examining the case file the Supreme Court found that the persons who are mentioned in the previous paragraph of this did not appeal, rather they were summoned by the Court registrar because they were the parties in the previous Courts, it decided on bench and it ruled that they be removed from the case and remains only who appealed. [12] Before the hearing on merit, the Court firstly examines the objection of lacking the jurisdiction raised by the Counsel for Nyarugenge district. II. ANALYSIS OF THE LEGAL ISSUE Determining whether the appeal of Sesonga and his mate falls into the jurisdiction of the Supreme Court [13] Rubango Epimaque, the counsel for Nyarugenge district in this judgment states that basing on article 28 paragraph 2 part 7 of organic law Nº 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, he is stating that the appeal of Sesonga and his mates should not be admitted because it does not fall into the jurisdiction of this Court because of there is no 50,000,000Frw which were awarded in the appealed judgment or be determined by the judge after the case dispute as it is provided for by this article. Therefore he realizes that what provide for this mentioned article are incomplete because everyone among the plaintiffs filed independently a claim. [14] Counsel Rubango Epimaque states in addition that apart from an objection he has already demonstrated, there is another one which concerns with the fact that the plaintiff lost the case in two previous Court for similar grounds. In that case he explains that the issue was examined on the first instance was to determine the nature of the contract and to assess whether the motif of the common interest would be based on in terminating that exists contract, that also the Court held that it is administrative contract and there is the existence of the reason of common interest for terminating the contract. [15] He found that those grounds were also examined at the High Court, also it decided that the appealed judgment sustain. He requests this Court may base on what Ntwari Justin the counsel for some who were the parties to this judgment agreed in his submission whereby he confirmed that his clients lost the case for the similar grounds. [16] On what concerns the objection of lacking the jurisdiction raised by the Counsel for Nyarugenge district, Gashagagaza Philbert, the Counsel for Sengoga and his mates states that it has no ground, on considering the amount of damages which his client requested were exceeding 50,000,000Frw, because all together are amounting to 159,300,000Frw, thus due to that reason he realisesthe appeal falls into the jurisdiction of the Supreme Court, they had the purpose to request the Supreme Court to award them.

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[17] He also adduces that the statement of the Counsel for Nyarugenge district that there must consider amount of everyone among the appellants instead of the amount of all, may be groundless because their claims were jointed together and also the damages they requested would be awarded if the court ruled that the contract was unlawfully terminated, but it held that the contract was lawfully terminated and it is that all did not satisfy for. [18] Concerning the objection for the fact that the appellants lost the case for the similar ground, Counsel Gashagaza Philbert and Counsel Ntwari Justin who represented them argue that it is groundless, in case the issues examined in two previous Courts and the motive they rendered are not similar, because in determining whether the grounds are the same or different, what must be based on is the motivations which were given by the Court on the first and second instance. [19] They continue in arguing that the previous Court declared that under Rwandan law there is no provision provides for the ways of changing the prices, whereas the High Court also declared that the Government had the right to change the prices due to the common interest, therefore nothing can prevent this Court to hear this submitted appeal. VIEW OF THE COURT [20] Concerning the requirements which lead the appeal to fall into the jurisdiction of Supreme Court, article 28, paragraph 2, part 7 of organic law Nº 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court stipulates that “the Supreme Court shall also have appellate jurisdiction over cases heard and decided in the second instance by the High Court, the Commercial High Court or by the Military High Court if such cases[…] involve a judgment in respect of which there was an award of damages of at least fifty million Rwandan francs (Rwf50,000,000), or when the value of the case , as determined by the judge in case of a dispute, is at least fifty million Rwandan francs (Rwf 50,000,000) [….]”. [21] The case file demonstrates that even if at the first instance and at second there was the damages which Sesonga and his mates requested, either in the judgment rendered by the Intermediate Court of Nyarugenge on the first instance, either the judgment rendered on the second instance by the High Court, those damages were not awarded because after the disputes on their basis, it was assessed whether Nyarugenge district did unlawfully terminate the contract , those both Courts ruled that the requested damages should not be awarded because Nyarugenge district did not commit the faults in terminating that contract. [22] Therefore basing on article 28, paragraph 2, part 7 of organic law Nº 03/2012/OL of 13/06/2012 mentioned above, the Court finds that the appeal of Sesonga and his mates does not fall into the jurisdiction of the Supreme Court, the objection for lacking the jurisdiction has merit. [23] This Court is finding on what regards the statement of the Counsel for Nyarugenge district that everyone among the appellants filed independently a claim, that also demonstrate that the appeal does not fall into the jurisdiction of this Court, what is obvious is that since the beginning of judgments, all claims were jointed together in one judgment, because all plaintiffs requested that Nyarugenge district must give to them something, but as it is stated, their claim

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was not given the merit on first or second instance. Therefore in determining what were requested, it should not be based on the request of every plaintiffs, rather all claim must be assessed together, but that does not impact the jurisdiction of this Court as it was motivated above. [24] After the provided motivations on what concerns the objection of lacking the jurisdiction, this Court finds that it is not necessary to examine the other objection of that the parties lost the case for the similar grounds with both previous Courts, because as it already mentioned, the appeal did not comply with what are provided for by the law so that it should fall into the jurisdiction of the Supreme Court. III. DECISION OF THE COURT [25] It decides that the objection of lacking the jurisdiction of the Supreme Court raised by Rubango Epimaque, the Counsel for Nyarugenge district has merit; [26] It holds that the appeal of Sengoga Idrissa, Agaba Christine, Semutwa Augustin Kabungo Omar, Moenback Hélène, Muhorakeye M.Claudine, the executive manager of Rwandafoam Rwandafoam, does not fall into the jurisdiction of the Supreme Court; [27] It orders that the Court fees are equal to the expenses of the judgment.