SONARWA GENERAL INSURANCE COMPANY Ltd v. UWIZEYIMANA

# SONARWA GENERAL INSURANCE COMPANY Ltd v. UWIZEYIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2023-08-06 - Case/document no.: RS/INJUST/RC 00006/2022/SC - Collection: Supreme Court

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SONARWA GENERAL INSURANCE COMPANY Ltd v. UWIZEYIMANA [Rwanda SUPREME COURT –RS/INJUST/RC 00006/2022/SC (Ntezilyayo, P.J, Muhumuza, Karimunda, J.) 23 June 2023] Civil procedure –Motor vehicle road accident- the prescription- a civil claim by a minor- the claim prescriptive period- the prescription of the victim’s civil claim can only be suspended by the claimant’s impossibility of filing the claim or by the claimant’s lack of civil majority. Civil procedure – delay time limits for filing a claim- illness- time delay limits for filing a claim can be extended due to an illness that might befall on the claimant and deprive him/her the use of certain faculties such as thinking, speaking, hearing or writing, or when so unconscious that he/she cannot even delegate a representation Facts: The case started from the Intermediate Court of Nyarugenge with Uwizeyimana who got an accident involving a certain car insured by SONARWA General Insurance Company Ltd and she lost an arm. She sued the car’s insurer and she sought a variety of compensations for the accident’s damages. The respondent raised an objection over the claim delay, and argued that the plaintiff delayed to file her claim, arguing that the five (5)

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year period that is legally provided for filing accidents’ related claims has already elapsed. However, the seized court found the plaintiff’s claim admissible and ordered SONARWA to give Uwizeyimana a variety of compensations that included civil, moral, aesthetic and damages for loss of marriage opportunity. The court has also allowed her refund for the incurred case-related expenses. The respondent appealed the above ruling before the High Court. However, this court considered a fact that Uwizeyimana had been picked by Nyirasimpunga, a good Samaritan, who raised her and who later died two years following the concerned accident, and who moreover had never adopted her, and therefore could not legally initiate the claim on her behalf. The plaintiff, still a minor, remained with the de cujus’s neighbours and she still could not file her claim since she was still a minor, and she had neither a parent nor a legal guardian to file a claim on her behalf. The court moved that the five (5) year claim-filing prescription period must be ignored. SONARWA applied for case review, and the case was slated to be reviewed by the Supreme Court, whereby the latter was to examine whether the claim to accident- related compensatory damages vanished. SONARWA argued that Uwizemana’s claim is inadmissible since she failed to observe the five (5) year time limit for filing accident- related civil claims, as she brought in her claim eleven (11) years after the accident, yet Government could have represented her since she was a parentless minor. For Uwizeyimana, she argued that her claim was admissible

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since she was a parentless minor, she had to wait until her civil majority. Held 1. The prescription of the victim’s civil claim can only be suspended by the claimant’s impossibility of filing the claim or by the claimant’s lack of civil majority. 2. Time limits for filing a claim can only be extended due to an illness that might befall the claimant and deprive him/her the use of certain faculties such as thinking, speaking, hearing or writing, or when so unconscious that he/she cannot even delegate a representation The application for case review has no justification. Statutes referred to: Law No 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, article 111; Decree-law N0 32/1975 of 7/8/1975 relating to compulsory insurance for road-using motorised vehicles, article 10. Reference cases: RS/REV/RCOM 00001/2022/SC, with Munyaburanga v. ECOBANK plc, rendered by the Supreme Court on 15/07/2022; RS/INJUST/RAD 00002/2022/SC with Mhayimana Isaïe v. Rwanda Bar Association, rendered by the Supreme Court on 17/02/2023

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Referrence doctrines B. Beigner & Sonia BEN, Droit des assurances, 2021, Paris, LGDJ, Lextenso, Pge 611. Cour de cassation, civile, Chambre civile 2, 21 février 2008, 07-12.801, https://www.legifrance.gouv.fr/juri/id/JURITEX T000018166899.]

Judgment I. THE BACKGROUND OF THE CASE

On the 27/01/2006, Uwizeyimana Clarisse, then 8-years-old got an accident involving a certain car Toyota Hilux RDF 331 D insured by SONARWA General Insurance Company Ltd, and she lost her left arm.

When Uwizeyimana Clarisse turned the age of civil majority, she wrote to SONARWA General Insurance Company Ltd on the 25/09/2017 and requested for accident related damage-compensations. And on the 22/08/2018, she wrote a second and last letter but the Insurance Company never replied. And, on the 26/09/2018, she filed a claim before the Intermediate Court of Nyarugenge, and she prayed the court to order the Insurance company for the payment of accident- related damage-compensations.

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SONARWA General Insurance Company raised an objection of inadmissibility against Uwizemana clarisse’s claim, and argued that the five (5)-year legal period for initiating accident related civil claims has already elapsed. Counsel Gabiro David who represented Uwizeyimana Clarisse argued that the Insurer’s objection is unfounded since the plaintiff could not initiate her civil claim yet she was a parentless minor who had been picked while still a baby and raised by Nyirasimpunga Laurence, a certain non-relative old woman who later died, and left Uwizeyimina Clarisse into the hands of close neighbours. The Counsel argued that the plaintiff had an accident when she was only 8- year-old, and she had no capacity to initiate accident-related compensatory claims.

For case RC 00847/2018/TGI/NYGE, the Intermediate Court of Nyarugenge held that the claim by Uwizeyimana Clarisse must be admitted; the court has as well held that she lost an arm due to an accident involving a certain car that was insured by SONARWA General Insurance Company Ltd, and moved that the plaintiff deserves the following damage- compensations: - 1, 620, 000 Rwf for aesthetic damages; - 9,765,219 Rwf for civil damages - 1,620,000 Rwf for moral damages - 2,160,000 Rwf for loss of marriage opportunity. - She also requested for a variety of expenses refund that included 6000 Rwf for buying the copy of the court

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judgement, 1,700 Rwf that she paid for a variety of certificates, 10,000 Rwf that she paid for a medical report, 600,000 Rwf for legal representation fee, and 100,000 Rwf for the incurred case-related follow-up costs.

SONARWA General Insurance Company Ltd, appealed the above ruling before the High Court and requested the court to examine about the admissibility of Uwizemana clarisse’s claim, arguing that they don’t understand how her guardian who died two years after the accident did not initiate the plaintiff’s civil claim, and still the Company cannot understand how her guardian neighbours who picked her following the guardian’s death never minded about following-up on her claim yet they all knew about the concerned accident. The Insurance Company has as well prayed the court to examine whether Uwizeyimana Clarisse really deserved damage- compensations.

On the 25/10/2019, the High Court heard case RCA 00289/2019/HC/KIG and held that the appeal by SONARWA General Insurance Company Ltd has no justification, the court considered a fact that Nyirasimpunga Laurence, the good Samaritan who picked and raised Uwizeyimana Clarisse has never been the latter’s legitimate guardian to an extent of initiating the child’s civil claims, and this coupled with a fact that Nyirasimpunga Laurence died two years following the accident, whereby the plaintiff was then picked up by Nyirasimpunga’s neighbours. The court moved that the

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violation of the five (5)-year time period and the prescription of her claim should be ignored since she was a parentless minor with no legitimate guardian.

On the 22/11/2019, SONARWA General Insurance Company Ltd petitioned the President of the Court of Appeal and prayed for injustice-related review of case RCA 00289/2019/HC/KIG rendered by the High Court on the 25/10/2019. Upon analysing the application, the President of the Court of Appeal wrote to Chief Justice and requested him an order for reviewing the above mentioned case due to injustice grounds. Chief Justice examined a certain report on the concerned case, and on the 22/08/2022, he issued writ n0 131/CJ/2022 and ordered the review of case RCA 00289/2019/HC/KIG, and the case was then docketed as RS/INJUST/RC 00006/2022/SC.

The case was heard in public on the 25/05/2023 with SONARWA General Insurance Company Ltd represented by Counsel Bimenyimana Eric, while Uwizeyimana Clarisse was assisted by Counsel Gabiro David. Parties debated on the issue of whether the plaintiff’s claim has already expired and whether SONARWA General Insurance Company Ltd deserves some damage-compensations. While for the issue of whether the plaintiff’ s physical incapacity originates from the concerned accident, SONARWA’s attorney acknowledged before the court that such an issue has never been debated in the previous instances, it cannot therefore be brought at its’ very first time for injustice- related case review, as it has always been a precedent from

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a variety of previous litigations.1 The hearing ended and pronouncement on the case was slated on the 23/06/2023. II. ISSUES OF THE CASE AND THEIR ANALYSIS a. Whether the plaintiff’s claim for road accident- related compensatory damages has already vanished.

Counsel Bimenyimana Eric who represented SONARWA General Insurance Company Ltd argued that the plaintiff’s claim should not be admitted for examination since a related record from the competent authority shows that the accident occurred on 27/01/2006, and Uwizemana Clarisse made her first reporting on the 25/09/2017, and that is after more than eleven (11) years later, and such a report contradicts the provision of article 4 of the Law n0 1/2002 of 17/01/2002 modifying and completing the Law n0 20/75 of 20/06/1075 relating to General Insurance2 .

1 See case RS/ INJUST/RC 00004/2019/SC rendered by the Supreme Court on the 28/07/2020 with Mukamana Mamique v. Vérène CANDALI and others; see case RS/INJUST/RC 00024/2018/CS rendered by the Supreme Court on the 21/02/2020 with Ngizweninshuti Albert v. Muhima Giovanni and case RS/INJUST/RC 00007/2018/SC rendered by the Supreme Court on the 13/03/2020 with Nditiribambe Samuel, Gatera Jason v. Nyamaswa Faustin. 2 It provides that in the limits of the above Decree-Law, any victim’s claim against the respondent’s Insurer shall extinct within a period of five (5) years, computed from the date of an event that gave rise to

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He went on and argued that the above mentioned Law n0 01/2002 provides that any road accident must be reported about within the period of five (5) years from the date it occurred, failure to which, such a reporting shall be invalid. Therefore, he argued that the court should not have considered Uwimana Clarisse’s accident reporting, since she violated the reporting time limits, and she thus deserves no damage-compensations.

He also argued that the accident recorded statement indicates that the then plaintiffs were both the Prosecution and Nyirasimpunga Laurence, whereby the grassroots administration confirmed that it is Nyirasimpunga Laurence who picked, raised and provided for Uwizemana Clarisse. He argued that Nyirasimpunga who stood for the plaintiff before the Investigation Organs, could as well have represented her for accident reporting and for damage-compensation claims. He also added that in case of Nyirasimpunga’s failure to initiate the plaintiff’s civil claim, the accident’s witnesses or the neighbours who picked her after Nyirasimpunga’s death, all had a right and could have made a follow-up on the plaintiff’s damage claim.

He argued that the Intermediate Court should in first place have not admitted the plaintiff’s claim, arguing that the plaintiff should have sought justice through alternative remedial as per the provision of article 128 of Civil Code book I in force at the time of the accident. He argues that Uwizeyimana Clarisse should have claimed

such a claim (Decree-Law n0 32/75 of 07 August 1975 relating to compulsory insurance for road-using motorised vehicles)

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for her rights to compensations through the family council, or she should have sought assistance from the Government since it is the State that has a mandate to stand for needy and helpless children. The Insurer’s attorney argues that the claim prescription period could at least be suspended if only the plaintiff had initiated a procedure for compensation agreement.

Counsel Gabiro David who represented Uwizeyimana Clarisse argued that SONARWA General Insurance Company is hereby not differentiating the formality for accident reporting from the procedure for accident damage- compensation claims. He explains that the formality for accident reporting has nothing to do with Uwizeyimana Clarisse since it is the obligation of the vehicle’s owner; arguing that the sole plaintiff’s responsibility was to initiate a claim for compensatory damages from an accident that involved a certain car that was insured by SONARWA General Insurance Company Ltd; of which she did not do because she was a parentless minor , just as it has been above explained, she was picked and raised by a good Samaritan while still an infant .

He went on and argued that even Nyirasimpunga Laurence who picked and raised Uwizeyimana Clarisse had no authority to initiate the compensation claim on the plaintiff’s behalf since she has never been her legitimate guardian, and neither was she her lawful adoptive parent. Similarly, all who picked Uwizeyimana Clarisse, after Nyirasimpunga’s death still could not initiate her civil claims since they all have never adopted her in the sense of the existing legal provisions. Those are the reasons that

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made Uwizeyimana Clarisse to wait for the age of her civil majority and then file the compensation claim by herself.

He also added that though SONARWA General Insurance Company Ltd asserts that the plaintiff’s claim is inadmissible due to the elapsing of a prescriptive period of five (5) years within the limits of which, any victim of the road accident must have reported about the undergone accident and claimed for related damage-compensations as per the provisions of article 4 of the Law n0 01/2002 of 17/01/2002 modifying and completing the Decree-law n0 20/75 of 20/06/1975 relating to General Insurance that provides for a five (5) year time limit for initiating road accidents compensation claims; however, he deliberately discarded a fact that paragraph 2 and 3 of article 10, and article 11 of the Decree-Law n0 32/75 of 07/8/1975 on insurance for road-using motorised vehicles tort liability has provided for an exception for claim prescriptive periods.

He concluded by adding that even the previous courts have substantiated their rulings under paragraph 11 of case RC 00847/2028/TGI/NYGE, and under paragraphs 13, 14, 15, and 16 of case RCA 00289/2019/HC/KIG where the High Court highlighted some legal doctrines on claims prescriptions, and where the Court analysed the content of article 3 of the Decree- Law n0 32/1975 of 07/08/1975 relating to compulsory insurance for motorised vehicles, the plaintiff’s attorney found that the ruling on case RCA 00289/2019/HC/KIG

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contains no injustice, and argued that the Insurer’ appeal is rather a resistance to the court’s decision.

DETERMINATION OF THE COURT

Paragraph one of article 10 of the Decree-Law n0 32/1975 of 7/8/1975 relating to compulsory insurance for road-using motorised vehicles provides that the victim’s claim prescriptive period is five years from the time of the accident, while paragraph 2 stipulates that the grounds for the suspension of the prescriptive period for the victim’s claim equally apply for the suspension of the prescription period for the Insurer’s claim.

The Law establishing the preface and the Civil code book I that was in force when Uwizeyimana Clarisse had an accident, especially in its article 431, placed the age of civil majority at (21)-years-old. While article 113 of the Law n0 32/2016 of 28/08/2016 governing persons and family placed the age of civil majority at (18)-years- old.

The court found that both litigating parties agree on a fact that Uwizeyimana Clarisse, an 8-years-old parentless child, had a car accident and lost an arm. The only point of disagreement between the parties lies into a fact that the attorney of SONARWA General Insurance Company Ltd argued the plaintiff’s claim was inadmissible since she did not observe the five (5) year

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legal time limit for filing accident’s damage compensation claims; arguing that even if the plaintiff had no parents to follow her case up as she alleges, the Government should have taken up her case, since it is the State’s obligation to cater for defenceless children. While the plaintiff’s attorney argued that the plaintiff’s claim was admissible, since she was a parentless minor, and had no any other choice apart from waiting for her age of civil majority.

For case RS/INJUST/RAD 00002/2022/SC between Mhayimana Isaïe and Rwanda Bar Association, the Supreme Court explained “the prescription” as the extinction of a person’s right due to the person’s inactivity in exercising his/her right in due time. The claim prescriptive period runs from the time the right’s beneficiary knew or ought to know the existence of an event that gave rise to his/her right.3

Looking at the content of paragraph one and two of article 10 of the above mentioned Decree-Law n0 32/1975, and considering all the above explanations on “prescription”, the court found that the victim of road accident has a period of five (5)-years for initiating damage compensation claims against the vehicle’s Insurer, failure of which, his/her right to claims vanishes. However, the law recognizes some grounds for the suspension of the claim prescriptive period, though it never enumerated neither did it explain such grounds.

3 See case RS/INJUST/RAD 00002/2022/SC rendered by the Supreme Court on the 17/02/2023 with Counsel Mhayimana Isaïe v. Rwanda Bar Association, page 8, paragraph 14.

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The case file indicates that the High Court found no prescription into the plaintiff’s claim for damage- compensation since Uwizeyimana Clarisse, the victim, was only 8-years-old, and neither Nyirasimpunga Laurence who picked and raised her nor the neighbours who took care of her after Nyirasimpunga’s death, none was the victim’ legitimate guardian for initiating civil claims on her behalf. The court found that since the plaintiff was still a minor for initiating her civil claim, that would be a valid ground for suspension of the claim prescriptive period.

With regard to the computation of claim time limits for a minor or any other helpless person, legal doctrines argue that the claim prescriptive period can only be suspended when the plaintiff is incapable of initiating the claim, or when he /she has not yet turned the age of civil majority4. And that is the stance that was held by the French Court of Cassation.5

4 B. Beigner & Sonia BEN, Droit des assurances, 2021, Paris, LGDJ, Lextenso, Pge 611. La prescription biennale ne peut être suspendue que par les circonstances mettant la partie dans l’impossibilité d’agir ou durant la minorité de l’assuré. 5 Dans le procès « Cour de cassation, civile, Chambre civile 2, 21 février 2008, 07-12.801 » : ttendu que, selon le premier de ces textes, l'action en garantie de l'assuré à l'encontre de l'assureur est interrompue par une des causes ordinaires d'interruption de la prescription ; que, selon le second, la prescription ne court pas contre les mineurs non émancipés et les majeurs en tutelle sauf ce qui est dit à l'article 2278 et à l'exception des cas déterminés par la loi.̏ https://www.legifrance.gouv.fr/juri/id/JURITEXT000018166899 c

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Another reference precedent for delay of initiating a claim was highlighted under paragraph 29 along case RS/REV/RCOM 00001/2022/SC with Munyaburanga v. ECOBANK PLc rendered by this very Court on the 15/07/2022, whereby the court held that the time limits for filing a claim can be extended due to an illness that might befall the claimant and deprive him/her the use of certain faculties such as thinking, speaking, hearing or writing, or when so unconscious that he/she cannot even delegate a representation

Considering all the above provided explanations and the fact that when Uwimana Clarisse had an accident was only 8-years-old and she had neither parent nor any legitimate guardian to make a follow-up on her case, the court found that Uwizeyimana Clarisse had no any other person entitled to help her initiate a claim for accident- related damage compensations against SONARWA General Insurance Company Ltd. The Court has therefore found that the claim prescriptive period got suspended because the victim was a parentless minor, and the prescription resumed from the start of her civil majority, that is when she turned 18. The argument made by the Insurer’s attorney, by which the Government, as an Organ that looks after helpless children, should have initiated the civil claim on the behalf of the plaintiff, the court found such an argument irrelevant, since such an arrangement does not supersede the victim’s right of a follow-up on her case at the age of civil majority. Looking at all the above provided grounds, this court, just as the High Court so held, found no prescription into the plaintiff’s claim.

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The Court therefore found no needy of examining SONARWA’s compensation refund request neither should the Insurance Company claim for related pecuniary interests since the High Court’s ruling that rejected the prescription allegation and subsequently allowing for the plaintiff’s compensations, contained no injustice. b. About the requests for refund on representation fees and the incurred case-related expenses

Counsel Nkurunziza Jean Pierre who represented SONARWA General Insurance Company argued that the Court should order Uwizeyimana Clarisse to refund the Insurance Company with 3,000,000 Rwf for court representation fees, and for case-related expenses which the Company incurred right away from the start of the case before the Intermediate Court up to the Supreme Court level; the above amount includes 2,000,000 Rwf for Counsel fee , and 1,000,000 Rwf for the incurred case- related follow-up costs since her claim made SONARWA General Insurance Company Ltd hire lawyers for court representation .

Counsel Gabiro David argued that SONARWA General Insurance Company Ltd deserves no damage- compensations, since they deliberately initiated an injustice-related case review with no relevant justification grounds, they should therefore bear related consequences. He therefore referred to article 111 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure ; together with article 32 of Rwanda Bar Association scale of fees and requested the

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Court to order SONARWA General Insurance Company Ltd to give Uwizeyimana Clarisse 3,000,000 Rwf that include 2,500,000 Rwf for court representation, and 500,000 Rwf for the incurred case-related expenses.

SONARWA’s attorney argued that the Insurance Company should not be responsible for the plaintiff’s expenses for the case review since it is not the Company that called her for the case more so that the plaintiff cannot even account for the sum she is requesting for. He argued that the amount she charged before the lower courts has already been honoured, and lamented that the 3,000,000 Rwf she is requesting before the Supreme Court is exorbitantly enormous. DETERMINATION OF THE COURT

Article 111 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure “The claim for representation fees is an incidental claim to the principal claim aiming to repay expenses incurred during judicial proceedings

The claim for legal costs is adjudicated at thesame time with the principal claim. It can also be admitted and adjudicated even if the principal claim has not been admitted.”

The Court found that SONARWA General Insurance Company Ltd deserves no court representation

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fee neither do they deserve refund for the incurred case- related expenses since they won nothing from this case.

With reference to the provision of article 111 of the above mentioned Law n0 22/2018 of 29/04/2019, the court found that Uwizeyimana Clarisse deserves compensation for the counsel fee and the incurred case- related expenses since she had to hire lawyers for assisting her with the case for which SONARWA General Insurance Company Ltd sought a review alleging injustice grounds. However, since she requested for an excessive amount without attaching any justifying evidence, the court has discretionarily allowed her 500,000 Rwf for court representation fee, and 300,000 Rwf for the incurred case-related costs, and it all summed up to 800,000 Rwf. III. DECISION OF THE COURT

Holds that the application by SONARWA General Insurance Company Ltd for injustice related review of case RCA 00289/2019/HC/KIG rendered by the High Court on the 25/10/2019, has no justification.

Holds that the ruling on case RCA 00289/2019/HC/KIG rendered by the High Court on the 25/10/2019 stays.

Orders SONARWA General Insurance Company Ltd to give Uwizeyimana Clarisse 500,000 Rwf for Counsel fee, and 300,000Rwf for the incurred case- related expenses, and it all comes to a sum of 800,000 Rwf.