SORAS v. SEBULIKOKO

# SORAS v. SEBULIKOKO

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-01-15 - Case/document no.: RCOMA 0017/12/CS - Collection: Supreme Court

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SORAS v. SEBULIKOKO [Rwanda SUPREME COURT – RCOMA 0017/12/CS (Mutashya, P.J., Nyirandabaruta and Gakwaya, J.) 15 January 2016] Contract law – Insurance contract – Indorsement – The insured cannot claim that it did not recognise that indorsement in case it is the latter which served the insured to pay the premium. Contract law – Insurance contract – Suing the insured – The insurer is entitled to suing the insured for the payment based on the provisions of endorsement that the insurer is subrogated the insured’s right and action and can even sue the latter. Damages – Deprivation of damages – Entreprise SEBULIKOKO Emmanuel must pay to SORAS the profit it might have gained from the money that it did not pay due to non-performance of contractual obligations – Law of 30/7/1988 governing contract or obligations, article 258. Damages – Recovery fee – This fee cannot be awarded because, in case it cannot be proven that the time the Court will order its payment, the payer will not do that. Facts: On November 28, 2008 Entreprise SEBULIKOKO Emmanuel concluded with Bugesera District the contract of construction of Gakurazo Health Center with execution period of 6 months. Prior to the signing of that contract, Entreprise had sought insurance from SORAS in the context of insuring the satisfactory completion of those works. The contract was valid till May 25, 2009 which is also the date of the completion of those works. Bugesera District later terminated the contract after requesting Entreprise SEBULIKOKO Emmanuel and the later accepted to transfer the tender to Juru Health Center. This was stressed by contract of June 23, 2009 regarding the construction of that center. While the contract was not yet signed, SORAS wrote to Bugesera District notifying it that it guaranteed Entreprise SEBULIKOKO Emmanuel for the satisfactory completion of the construction of the center. On September 23, 2009 the District notified Entreprise of the termination of the contract due to non-respect of the period of execution of the works. It wrote then to SORAS demanding the payment of 17.942.335 Frw which was the performance bond for that tender. SORAS made the payment and file a claim before the Commercial High Court requesting that Entreprise SEBULIKOKO Emmanuel refund that amount of money. The Court decided the case and held that SORAS loses the case since it committed the fault of notifying the District that it guaranteed the execution of those works without prior consultation with about the renewal of the contract of insurance that they had concluded on May 25, 2009. The Court decided that SORAS was not entitled to suing Entreprise SEBULIKOKO Emmanuel in case there was no contract which could enable it to do it. SORAS appealed to the Supreme Court challenging the decision of the Commercial High Court which committed error in fact and held that SORAS paid Bugesera District while the contract which was between it and Entreprise SEBURIKOKO Emmanuel had expired. Entreprise SEBULIKOKO Emmanuel responded that the contract concluded by both parties regarding the construction of Gakurazo Health Center was not transferred to the tender of the construction of Juru Health Center

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Held: 1.Entreprise SEBULIKOKO Emmanuel cannot pretend of the non-recognition of the indorsement which renewed the contract of insurance it had concluded with SORAS by contesting that it signed it and contesting that the indorsement in issue could not renew the contract which had already expired in case it referred to it to pay the additional premium which was paid because the quotation for the construction of Juru Health Center had increased compared to the tender of the construction of Gakurazo Health Center which was agreed upon in the former contract. 2. Contracts made in accordance with the law shall be binding between parties. Hence, Entreprise SEBULIKOKO Emmanuel cannot pretend that the period for satisfactory execution could not be extended while the contract had expired since the work regarding the tender whose execution bond was deposited were not executed but rather transferred elsewhere but under the same entrepreneur and insurer whereby the agreed that performance bond could be transferred to the new tender and increase the premium instead of concluding the new contract. This implies that their agreements are in compliance with the law especially that the contract can be modified upon the request of either the insurer at any time there is there is a probability of increase in circumstances of the risk or in case there is possible of the new circumstances which were not covered from uncovered risks. Therefore, the fact that both parties agreed that the insurer subrogates the insured in rights and actions and may sue the him/her implies that SORAS must be refunded 17.945.335 Frw it paid to Bugesera District for the insurance of the tender for satisfactory completion of the works of the constriction Juru Health Center. 3. Any act of man, which causes damage to another obliges the person by whose fault it happened to repair it. The fact that SORAS is a commercial Company and that Entreprise SEBULIKOKO N. Emmanuel breached the contract that both parties had concluded by denying to refund the money that SORAS had paid demonstrates that it was deprived of the profit it might have gained from that money implies that it must be awarded interests. 4. It cannot be awarded recovery fee in case it does not demonstrates the payer, if ordered by the Court to pay back the money, it will not do it. It is not necessary to examine cross-appeal filed by Entreprise SEBULIKOKO Emmanuel because it lost the case on all grounds. Appeal has merit; Entreprise SEBULIKOKO Emmanuel is ordered to refund SORAS Assurances Générales Ltd 17.945.335 Frw and pay 18.035.061 Frw for its interests and 1000 000Frw for advocate fees. It is ordered also to pay the court fees. Statutes and statutory instruments referred to: Law No 12/2007 of 27/03/2007 On public procurement, article 75. Law of 30/7/1988 governing contract or obligations, articles 33 and 258. No case referred to Judgment

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I. BRIEF BACKGROUND OF THE CASE [1] Entreprise SEBULIKOKO Emmanuel concluded the contract of the contruction of the Health Center of Gakurazo with Bugesera District on November 28, 2008. The completion period was 6 months(This means till May 25, 2009). Prior to the signing of that contract, Entrepsire SEBULIKOKO Emmanuel entered into the insurance contract with SORAS on November 26, 2008 to sxcure the completion of those works. This contract also was supposed to take the end on May 25, 2009 as provided for by its article 6. [2] The District stopped the execution of the work for which Entrepsire SEBULIKOKO Emmanuel was a succesciful bidder. The District decided that those works had to continue to Juru Health Center. Entrepsire SEBULIKOKO Emmanuel accepte dit and concluded with the District another contract regarding the construction of Juru Health Center, [3] While the new contract the new contract between Entrepsire SEBULIKOKO Emmanuel and Bugesera District was not yet signed, SORAS wrote to Bugesera District notifying it that iplt had concluded with Bugesera District the insurance contract to secure the works of the construction of Juru Health Center. [4] On September 23, 2009 Bugesera Dustrict wrote to Entreprise SEBULIKOKO Emmanuel notifying it of the termination of the contract due the non-respect of the completionj period. [5] On December 15, 2009 Bugesera District wrote to SORAS seeking the payment 17.942.335 Frw that was pledged as security on that works. SORAS had paid and then filed the claim before the Commercial High Court requesting that Entreprise SEBULIKOKO Emmanuel be ordered to refund it the money it paid to Bugesera District. [6] In the judgment RCOM 0021/11/HCC rendered on August 10, 2011, based on the fact that SORAS had committed the fault of notifying Bugesera District that it had concluded the insurance contract to secure the construction works by Entreprise SEBULIKOKO Emmanuel, and SORAS proceeds in this way without requesting Entreprise SEBULIKOKO Emmanuel to renew contract they had concluded and which had expired on May 25, 2009, the contract which could otherwise enable SORAS to seek the payment from Entreprise SEBULIKOKO Emmanuel for the indemnification that would have given to Bugesera District, the Commercial High Court held that there was no basis for SORAS to sue Entreprise SEBULIKOKO Emmanuel in case there was no contract. Hence, it held that its claim had no merit. [7] No satisfied with the ruling SORAS appealed to the Supreme Court on March 2, 2012 stating that the Court committed error on fact since it could not hold that SORAS indemnified Bugesera District while the contract between it and Entreprise SEBURIKOKO Emmanuel had expired since SORAS had insured the performance. He contended further that there was a contradiction by the Court since it could not also hold that SORAS was not entitled to a subrogated action and hence dismiss the action filed by SORAS on the grounds that the contract between SORAS and Entreprise SEBURIKOKO Emmanuel had expired.

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[8] The public hearing was fixed on June 30, 2015. On this day the case the hearing was conducted SORAS being represented by Nkurunziza François Xavier, the counsel while naho Entreprise SEBULIKOKO Emmanuel was represented by Rwagatare Janvier, the counsel. On that very day,in the interlocutory judgment, the Court decided that SORAS must first hand the insurance contract no 010/792/1/0001733/2008 dated December 2008 which was concluded between SORAS and Entreprise SEBURIKOKO Emmanuel as referred to in the correspondence no 02/168/10/M.A. dated June 4, 2010 that SORAS addressed to Entreprise SEBULIKOKO Emmanuel requesting the refund of the security that was pledged for the completion of performance of construction works that SORAS had paid to Bugesera District. The hearing was fixed on October 20, 2015 and on that day it was also adjourned to December 8, 2015 since SORAS had not yet submitted those documents the Court had asked it. II. ANALYSIS OF LEGAL ISSUES 1) Whether SORAS deserves to be refunded 17.945.335 Frw that it gave to Bugesera District as security pledged by Entreprise SEBULIKOKO Emmanuel. [9] Nkurunziza François Xavier, counsel for SORAS states that the Court committed error in fact. He explained the Court could not hold that SORAS indemnified Bugesera District while the contract it had with Entreprise SEBULIKOKO Emmanuel had expiredbecause SORAS had secured the performance of the works. [10] He argued that at first glance, the insurance contract was signed on November 26, 2008 and SORAS committed to ensure the execution of the works of construction the Gakurazo Health Center which was later terminated and replaced by another contract signed on June 23, 2009 of the construction of Juru Health Center. This contract had to be performed within six months, that is from December 22, 2009 but, SORAS accepted to change that insurance to the works of the construction of Juru Health Center of which Entreprise SEBULIKOKO Emmanueland was a successiful bidder, had insured performance of those works. [11] Nkurunziza François Xavier states that the security that was pledged for Bugesera District was the security was demand guarantee which was valid till final complation and though the insurance contract could not be executed at the same time as demand guarantee, the essential is that Bugesera District has shown that Entreprise SEBULIKOKO N. Emmanuel breached the contractand therefore SORAS was asked to indemnify. [12] He continued arguing that after the termination of the contract in connection to Gakurazo open tender, Entreprise SEBULIKOKO Emmanuel returned to SORAS nad requested that the the insurance contract to secure the Gakurazo’s tender be transferred to Juru’s tender and that in the meantime, there was no any other written contract between SORAS and Entreprise SEBULIKOKO Emmanuel that demonstrates that the insurance contract to secure the construction works at Gakurazo has been transferred to the construction works at Juru and that the written contract was not necessary in case Entreprise SEBULIKOKO Emmanuel had made a request thereto verbally as this is the prctice in commerce whereby parties can enter into agreement without without necessitating the written contract. He added that when a person gives an offer gives the price for the srvice but it is not performed, hem ay requests the transfer of that price to another service.

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[13] He argued further that as to the issue of issue of guarantee that SORAS and Entreprise SEBULIKOKO Emmanuel would have at the time of construction of Juru Health Center, it had to show the insurance contract before taking off the works and had also show the bank slip for the payment since the guarantee for performance is for the indemnification for partial execution or for defects into the performance. He added that it is not necessary that this money be embodied in the contract because the works pay be defectively performed or not performed at all, the reason why it is normally uknown. He explained that the insurance that they offer is like liability insurance that when the insured causes harm to the third part, the insurer is then bound to pay but when it causes such a harm upon the fault of the insured, the insurer indemnifies but in return demand the insured since the liability is caused by his/her fault, the origin of subrogated action. [14] With regard to this ground of appeal, Rwagatare Jananvier, counsel for Entreprise SEBULIKOKO Emmanuel denied that the public tender on construction works of Gakurazo Health Center was tranferred to Juru’s tender. He explained that based on the provisions of article 6 of the tender on Gakurazo, as long as the tender was changed even the insurance contract had also to be changed and, this this was not the case because if it was like that they would have charted Entreprise SEBULIKOKO Emmanuel an additional primium. They concluded that the guarantee which was pledged by SORAS was of good execution of the works based on the contract which was no longer in effect. [15] Counsel Rwagatare Janvier added that another term that had to be changed in that contract was is the premium that had to be paid to SORAS. He stressed that SORAS was negligent not ro requests the renewal of the contract and to their view, the findings of the previous judge reflect the truth since the contract that had to serve as the ground for it to pay was no longer in effect and it had not to pay. He concluded that it could not pretend its faults and demands Entreprise SEBULIKOKO Emmanuel to pay. [16] Rwagatare Janvier, counsel for Entreprise SEBULIKOKO Emmanuel, added that another ground that SORAS could not ask Entreprise SEBULIKOKO Emmanuel to pay was that at the time he sought the guarantee, there was a priumium that SORAS had requested and it is that very premium that [17] With regard to the issue of the guarantee that Entreprise SEBULIKOKO had at the time of the construction of Juru Health Center, Counsel Rwagatare argued responded that the beneficiary of the Center had not requested it but, what he had asked was to change the bid and, he had no obligation of reminding the District about the guarantee. He added that he notified to his guarantor about the change of the contract and hence the draft of the new contract was required and whether necessary be notified by the guarantor whether the paid premium could continue even on the new bid. [18] The hearing of the case was closed and but was re-opened on October 20, 2015 as highlighted oin paragraph [8] of the judgement. On that date further it was postponed on December 8, 2015 but prior to that date Nkurunziza François Xavier, counsel for SORAS submitted to the Court the document which demonstrates that the contract no 0010/792/1/0001733/2008 dated December 25, 2008 has never existed between litigants. He explained that this was typographical errors that occurred in the correspondence dated June 4,

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2010 as referred to above. This docoment was accompnied by premium bank slip of June 3, 2009 that whereby Entreprise SEBULIKOKO Emmanuel had paid 182.756 Frw and indorsement no 010/790/04/000040/2009 for the guarantee of good execution also dated June 3, 2009. [19] During the hearing of December 8, 2015, counsel Nkurunziza F. Xavier informed the Court that after Entreprise SEBULIKOKO Emmanuel bid of the construction of Gakurazo Health Center to which it was successiful was Councelled and concludes with the District the contract of building the Juru Health Center, there was no any other contract of guarantee between SEBULIKOKO Emmanuel and SORAS in connection to that bid.Rather what was later dane is the the indorsement to those agreement. [20] Counsel Rwagatare Janvier also states that the they do notrecognise contract of no 0010/792/1/0001733/2008 dated December 25, 2008 and that as long as there was an error the nit would trully that those agreements were never entered into.With regard to the indorsement, he responded that this could not happen because there was no principal contract. He articulated rather that the new contract would be required and that it is obvious that client did not sign the alleged indorsement. THE VIEW OF THE COURT [21] Article 57 of Law N° 12/2007 of 27/03/2007 on Public Procurement provides that the performance security shall be submitted by a successful bidder before signing the procurement contract. It shall neither be less than five per cent (5%) nor more than ten per cent (10%) of the contract value. [22] The case file demonstrates that on November 26, 2008 Entreprise SEBURIKOKO Emmanuel concluded with SORAS the contract no 010/790/1/001733/2008 to secure the execution of works of the construction of Gakurazo Health Center in the procurement contract between Bugesera District and that Company. Article 1 of insurance contract demonstrates that the covered risk was the execution and completion of the tender. Article 2 provides that the insured undertakes to notify SORAS of all modifications and disputes against him in connection to that tender. Article 4 provides that the insured only intervenes as indorsed. The main debtor remains the insured. Article 6 provides that the contract shall be in effect for six months which start run from November 26, 2008 and it shall automatically expire on May 25, 2009 without further notice. [23] The case file demonstrates further, as imbodied in the premium recept no 021605/2009, that on June 3, 2009 Entreprise SEBULIKOKO Emmanuel had paid 182.756 Frw in FINA BANK Ltd for the premium to SORAS. The payment was in accordance with the contract no 010/790/1/001733/2008 which has been into force since November 26, 2008 till December 25, 2009 and was done through check no 00000061. On that date it is found that there is an endorsement no 010/790/04/000040/2009 which extended the contract date of expiration from November 26, 2008 till December December 25, 2009 as well as the performance bond which also changed from 16.322.705 Frw to 17. 92.335 Frw. [24] The case file demonstrates further that on on that very date, June 3, 2009 SORAS wsrote to Bugesera District notifying it that upon the request of Entreprise Sebulikoko Emmanuel it

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secured the completion of construction of Juru Health Center on the price of no more than 17.942.335 Frw. On December 16, 2009 Bugesera District wrote to the Managing Director of SORAS demanding the payment for the pledged security by Entreprise SEBULIKOKO Emmanuel for the satisfactory completion of the construction of Huru Health Center in accordance with the provisions of article 4 of the insurance contract aforementioned. On June 4, 2010 SORAS wrote to Entreprise SEBULIKOKO Emmanuel informing that it was being damanded to pay by Bugesrra District and warned that failure to get to agree with Bugesera District withing 5 days counted from the reception of the correspondence, SORAS is ready to pay.In consequence, the District was paid seventeen million nine hundred fourty two thousand and three hundred Rwandan Francs (17.942.335frw) as demonstrated by the payment receipt issued by Bugesera District on June 14, 2009. [25] The Court notes that, as demonstrated above, prior to the start of the works of the construction of Juru Health Center, Entreprise SEBULIKOKO N. Emmanuel had, in complience with article 75 of Law no 12/2007 of 27/03/2007 on Public Procurement, to depose the performance bond. It is in this context that on June 3, 2009 it paid the premium of 182.756 Frw based on the insurance contract no 010/790/1/001733/2008 for satisfactory completion of tender which was into effect from November 26, 2008 till December 25, 2009. [26] The Court finds that the insurance contract no 010/790/1/001733/2008 which was into effect from November 26, 2008 till December 25, 2008 was extended by the endorsement 010/790/4/000040/2009 dated June 6, 2009 which demonstrates that the performance bond that was secured by SORAS changed from 16.322.705 Frw to 17.942.335 Frw and the statement of counsel for Entreprise SEBULIKOKO Emmanuel that such an endorsement must not be considered because Entreprise SEBULIKOKO Emmanuel did not sign it and could not extend the expired contract has no merit since that indorsement served as the basis for Entreprise SEBULIKOKO Emmanuel to pay the additional premium of 182.756 Frw as indicated by the aforementioned premium receipt No. 021605/2009. That additional premium was paid by "Premium receipt No. 021605/2009 due to the fact that the tender of construction of Juru Health Center had increased in quotation compared to Gakurazo Health Center as explained by Entreprise SEBULIKOKO Emmanuel in its correspondence questing to handle his injustice dated October 28, 2009 to the Minister of Justice and Attorney General whereby he showed that the tender of Juru was granted to it at the quotation of 2.000.000 Frw while that of Gakurazo was granted on quotation of 600.000 Frw and it is hence understandable that the bond security had to be increased. [27] Based on article 33 of Law of 30/07/1888 instituting Civil Code Book III which was into effect at the time of the conclusion of the aforentioned insurance contract between SORAS and Entreprise SEBULIKOKO Emmanuel which provides that contracts made in accordance with the law shall be binding between parties and based also on the endorsement aslo eforementioned, the fact that SORAS and Entreprise SEBULIKOKO Emmanuel signed the insurance contract no 010/790/4/000040/2009 dated November 26, 11 to which the gave the expiry period of till May 25, 2008 while the works of the tender which was insred were not executed and be transferred elsewhere between the same interpreneur and the insurer whereby they agreed that the deposited performance bond be placed also on the new tender and hence agreed on the encrease of the premium which was later paid by the interpreneur and instead of drafing the new contract, they opted for the renewal of the existing one demonstrates that the contracting partiesinfringed no

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law. Instead, their agreement binds them. Therefore, the statements of counsel for Entreprise SEBULIKOKO Emmanuel that they could not extend the time of the insurance for satisfactory performance while the contract had already expired has no merit. [28] The Court finds that even legal scholars teach that isurance contract must be changed when new circumstances have the effect of aggravating the risk covered by the insurance policy or create new uncovered risks emanating from various circumstances.1 The insurer or the insured may propose an amendment to the contract: for example, new warranty terms, removal or addition of exclusions, changes to the benefit limits or deductibles, revaluation of capital insured). Hence, the fact that the works of construction of Gakurazo Health Center were replaced by the construction of Juru Heath Center emplies that the indorsement the endor-sment which was done was intended to renewal the contract of satisfactory execution of the works of construction of Juru Health Center since the performance bond asalready deposited for the execution of those works buy were not done. [29] The Court finds therefore that it is on June 3, 2009 that both SORAS and Entreprise SEBULIKOKO Emmanuel signed the indorsement no 010/790/4/000040/2009 dated Novmber 26, 2008. That indorsement was in effect till December 25, 2009 and it is on this date that Entreprise SEBULIKOKO Emmanuel paid the additional premium and it is from this ground that SORAS based on to write to Bugesera District admitting the performance bond for the construction of Juru Health Center. This is evidence that when SORAS admitted to pledge that bond, it based on the contract that had expired because at that very date, the contract was renewed as aforementioned. This overturn the hildings of the Commercial High Court that SORAS committed the fault notifying Bugesera on June 3, 2009 that it had insured the works of the constructions of Juru and it di dit without resorting to the negotiation with Entreprise SEBULIKOKO Emmanuel for the renewal of the insurance contract that theu had concluded and which had expired on May 25, 2009 and which could otherwise enable SORAS to claim the payment from Entreprise SEBULIKOKO Emmanuel the money that it would have paid to Bugesera District and based on this to cocnlude that SORAS had no basis to sue Entreprise SEBULIKOKO Emmanuel in case of absence of contractual obligations since there was valid contract in effect as aforementioned. [30] Based on the holdings above and on the provisions of article 4 of the contract, the Court finds that the contract no 010/790/1/001733/2008 dated June 3, 2009 as renewed by the endorsement 010/790/4/000040/2009 dated 03/06/2009 which provides that the insurer is subrogated in rights and action of the policy holder and may possibly sue the insured, (L’assureur est donc subrogé de plein droit dans les droits et actions du maître d’ouvrage contre le souscripteur, à concurrence de garantie à cet effet, un droit de recours sera exercé par l’assureur contre le souscripteur, ses descendants, ou ses héritiers pour le remboursement de ses 1Le contrat d’assurance peut être modifié, sur proposition de l’assuré ou de l’assureur. Il doit être modifié lorsque de nouvelles circonstances ont pour conséquence d’aggraver le risque couvert par le contrat d’assurance ou de créer de nouveaux risques. L’assureur ou l’assuré peut proposer une modification du contrat: par exemple, nouvelles conditions de garantie, suppression ou ajout d’exclusions, changements relatifs aux plafonds de garantie ou aux franchises, réévaluation des capitaux assurés). http://www.ffsa.fr/sites/jcms/c_33716/fr/les-modifications-du-contrat-dassurance?cc=c_51663. Consulté le 15/01/2015.

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débours »….,hence, SORAS must be refunded of the koney itpaid to Bugesera District as indemnification for the payment it had done to Bugesera District for the insurance it sought by that Entreprise to secure execution of the works of construction of Juru Health Center. 2. Whether SORAS Ltd must be awarded the damages it seeks [31] Nkurunziza François-Xavier states that SORAS must be awarded by SEBULIKOKO Emmanuel the interests of 18% since Junuary 2010, recovery cost equivalent to 2.692. 800 Frw, advocate fee equivalent to 10%, that is 1.794.534 Frw. THE VIEW OF THE COURT [32] Article 258 of Law of 30/7/1888 relating to the contract and contractual obligations provides that any act of man, which causes damage to another obliges the person by whose fault it happened to repair it. [33] Though Entreprise SEBULIKOKO Emmanuel kept silence on those damages sought by SORAS, the Court notes that its delibarate breach of contract of insurance it concluded with SORAS whereby it denied refunding the money that it had paid Bugesera District since Entreprise SEBULIKOKO Emmanuel had failed to fulfil its obligations of completion of worsk that were assigned by that District and led SORAS to appealing to Courts implies that Entreprise SEBULIKOKO Emmanuel must repair the damages thereto. [34] The Court notes that SORAS is a commercial company . Threfore, the fact that Entreprise SEBULIKOKO Emmanuel denied paying its money from the moment it had paid Bugesera District till now deprived it with the profit that it might have generated, implies that it must be awarded interest on the rate of 18% and those interests must be, being computed from ich mustJune 14, 2010, the time the District was paid, the totality of the money which must be refunded to SORAS after the intrests are added is 17.945.335 Frw + 18.035.061 Frw = 35.980.395 Frw. [35] The Court finds that the recovery fee sought by SORAS must not be awarded because it is not provided in the contract concluded between SORAS and Entreprise SEBULIKOKO Emmanuel and did not demonstrate that if it is ordered to pay, i twill not voluntarily do it. It must instead be awarded 1 000 000Frw for advocate fees. [36] The Court finds that it is not necessary to examin the issue of cross appeal filed by Entreprise SEBULIKOKO Emmanuel seeking damages because it lost the case. III. THE DECISION OF THE COURT [37] Decides that appeal filed by SORAS Assurances Générales Ltd has merit; [38] Condemns Entreprise SEBULIKOKO NIYOMWUNGERI Emmanuel to refund SORAS Assurances Générales Ltd 17.945.335 Frw and 18.035.061 Frw for its interests and 1 000 000Frw for advocate fees, the totality being 36. 980.396 Frw;

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[39] Orders Entreprise SEBULIKOKO NIYOMWUNGERI Emmanuel to pay the court fees equivalent to 100.000 Frw.