SONARWA GENERAL INSURANCE COMPANY LTD v. NKUBITO

# SONARWA GENERAL INSURANCE COMPANY LTD v. NKUBITO

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-04-22 - Case/document no.: RCAA 0053/12/CS - Collection: Supreme Court

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SONARWA GENERAL INSURANCE COMPANY LTD v. NKUBITO [Rwanda SUPREME COURT – RCAA 0053/12/CS (Nyirinkwaya, P.J., Nyirandabaruta and Mukandamage, J.) April 22, 2016] Civil procedure – self deprivation of the right to file a claim – damages– the effects for the one who made self deprivation of the right to file a claim – self deprivation of a claim is the right of party to the case – plaintiff withdraws from a case or deprives him/herself of the right to action, he/she may be liable for court fees and all other costs incurred by the defendant – any act of man, which causes damage to another obliges the person by whose fault it happened to repair it –Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 26 (1) – Practice Directions N°002/2015 of 18 /05/ 2015 of the Chief Justice governing civil, commercial, labour and administrative procedure, article 29 – Decree law 30/07/1888 relating to Contracts or obligations, article 258 Facts: Nkubito sued STIR en liquidation and Sonarwa at Intermediate Court requesting the damages worth to 48,900,000Frw because of the accident which happened on 13 whereby the lorry knocked his car; that Court held that Sonarwa represented STIR should pay to Nkubito the value worth to what damaged on his car, the transport fees and the statement of the accident fees drafted by the police, but it should not give to him the unemployment indemnity because he did not produce the evidence of it. Sonarwa appealed against that decision with the High Court and also Nkubito filed cross appeal; then the Court decided that the claim of Sonarwa has no merit whereas that of Nkubito Joseph is rejected Sonarwa appealed again at the Supreme Court, at pre screening of that appeal, the judge in charge ruled that the appeal does not fall into the jurisdiction of the Supreme Court because the appellant did not produce the grounds provided for by the law. Sonarwa appealed against that decision, it was examined the request for Self deprivation of a claim filed by Sonarwa. Held : 1. self deprivation of the right to action is a self denial of one’s capacity to plead. It is also self deprivation of rights to make a follow up of the claim. Acceptance of another party is not necessary therefore self deprivation of a claim is the right of party to the case, the request of Sonarwa must be accepted. 2. Plaintiff withdraws from a case or deprives him/herself of the right to action; he/she may be liable for court fees and all other costs incurred by the defendant moreover any act of man, which causes damage to another obliges the person by whose fault it happened to repair it because the action of Sonarwa for appealing against the judgement rendered by the High Court and to appeal against the pre screening decision led him to hire a Counsel. The claim of withdrawing from a case is accepted;

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With the Court fees to Sonarwa. Statutes and statutory instruments referred to: Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 26 (1) Practice Directions N°002/2015 of 18 /05/ 2015 of the Chief Justice governing civil, commercial, labour and administrative procedure, article 29 Decree law 30/07/1888 relating to Contracts or obligations, article 258 No Cases referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] This judgment began at the intermediate Court of Nyarugenge, Nkubito sued STIR en liquidation and Sonarwa, requesting 48,900,000Frw of the damages because of the accident which happened on 13 April 1992 when the lorry of STIR knocked his car. [2] On 23 November 2007, the Court rendered the judgment n° RC 0067/06/TGI/NYGE and held that Sonarwa represented Trident Insurance Company Ldt which insured the lorry of STIR should pay to Nkubito 796,058Frw worth the value of what damaged on his car, 100,000Frw of the transport and 1200Frw of the statement of the accident drafted by the police, but it should not give to him the unemployment indemnity because he did not produce the evidence of it. [3] Sonarwa appealed against that decision with the High Court, Nkubito filed cross appeal, the Court rendered the judgment n° RCA 0248/07/HC/KIG on 12 August 2011 then it decided that the claim of Sonarwa has no merit whereas that of Nkubito Joseph is rejected. [4] On 09 September 2011 Sonarwa appealed to the Supreme Court, the claim is recorded on n° RCAA 0104/11/CS, it’s appeal was pre-examined on n° RCIV 0012/PRE-EX /12/CS on 20 October 2011, the judge who examined it rules that it does not fall into the jurisdiction of the Supreme Court because the appellant did not produce the grounds provided for by article 43 organic law n° 01/2004 of 29/01/2004 establishing the organisation, functioning and jurisdiction of the supreme court. [5] The decision of pre-screening was informed to Sonarwa on 16 May 2012, it appealed against it on 25 May 2012, the claim was recorded n° RCAA 0053/12/CS, the hearing of judgment was conducted in public on 05 April 2016, Sonarwa General Insurance Company Ltd represented by Counsel Rutagengwa Jean Damascène, Nkubito Joseph represented by Counsel Mbera Ferdinand, in examining the request for Self deprivation of a claim filed by Sonarwa. II. ANALYSIS OF THE LEGAL ISSUES a) Determining whether Sonarwa should be allowed to withdraw its appeal

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[6] Counsel Rutagengwa states that Sonarwa withdraws its appeal basing on article 26 Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure. [7] Mbera Counsel for Nkubito Joseph argues that the self dipravation of claim is the right of the appellant party. VIEW OF THE COURT [8] Regarding the self deprivation of a claim, article 26 (1) of Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure stipulates that “self deprivation of the right to action is a self denial of one’s capacity to plead. It is also self deprivation of rights to make a follow up of the claim. Acceptance of another party is not necessary.” [9] Basing on that article, the Court is finding that self deprivation of a claim is the right of party to the case, thus the request of Sonarwa for withdraw its appeal should be allowed. b. Determining whether Nkubito should be awarded the damages he requests for [10] Counsel Mbera states that Sonarwa dragged Nkubito into lawsuits; therefore he requests to be paid 2,000,000Frw of the Counsel fees. [11] He states in addition that due the period spent after the rendering of the judgment at intermediate Court of Nyarugenge, he requests that the money which was awarded to Nkubito Joseph could be double in order to be equal to the current monetary value. [12] Rutagengwa, the counsel for Sonarwa states that if the judgment was not heard on merit, the party to the case could not ask anything. VIEW OF THE COURT [13] Concerning the fact that the money awarded to Nkubito at Intermediate Court of Nyarugenge could be double in order to be equal to the current monetary value, the Court finds that issue concerning the merit of the judgment, therefore it should not be examined in case the judgment is not heard on merit. [14] Regarding the counsel fees, the Court finds that Nkubito should be awarded it on the basis of article 29 Practice Directions N°002/2015 of 18 /05/ 2015 of the Chief Justice governing civil, commercial, labour and administrative procedure stipulates that if a plaintiff withdraws from a case or deprives him/herself of the right to action, he/she may be liable for court fees and all other costs incurred by the defendant, and also on article 258 of Civil Code Book III which stipulates that any act of man, which causes damage to another obliges the person by whose fault it happened to repair it, because the action of Sonarwa for appealing against the judgement rendered by the High Court and to appeal against the pre screening decision led him to hire a Counsel .

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[15] But the Court finds that the money he request for, are excessive, rather in its discretion he should do be awarded 800,000Frw according to the nature of the judgment. III. DECISION OF THE COURT [16] It holds that Sonarwa General Insurance Company Ltd is allowed to withdraw its appeal on the decision of pre- screening; [17] It rules that nothing is changed on the pre-screening decision N° RCIV 0012/PRE-EX /12/CS of 20 October 2011 which decided that the appeal of Sonarwa does not fall into the jurisdiction of the Supreme Court; [18] It orders Sonarwa General Insurance Company Ltd to pay to Nkubito Joseph 800,000Frw of the Counsel fees on this instance; [19] It orders it to pay the Court fees equal to 100,000Frw.