Abazungura ba Nzisabira v Rwanda Foam

# Abazungura ba Nzisabira v Rwanda Foam

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-06-06 - Case/document no.: RCOMAA 0033/13/CS - Collection: Supreme Court

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NZISABIRA SUCCESSORS v. RWANDA FOAM [Rwanda SUPREME COURT – RCOMAA 0033/13/CS (Havugiyaremye, P.J., Rugabirwa and Mukandamage, J.) 6th June 2014] Commercial procedure – The objection of inadmissibility of a claim because of lack of status and interest – Time of raising an objection of inadmissibility of a claim – Lack of status and interest to file a claim may be made by a party or court at its own motion may, at any stage of the proceedings because is the nature of public law and order – When the previous court has ruled on the objection of inadmissibility of a claim, it cannot prevent to be appealed with the case on its merit because the hearing was not closed at first instance even if they may be appealed alone – Article nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, Article 2, 19 2o and 142. Commercial procedure – Evidence submitted after the closing of the hearing – The rectified judgment and judgment rectifying are complementary; they cannot be separated but they shall be considered together – To communicates it to the other party for respecting the right of defense – when a party submits a new and relevant document or facts which can help to demonstrate the truth, it is considered; the important is to communicate it to the other party and replies on it before the judgment is rendered – Law nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, Article 69. Contracts or obligations laws – The validity of a contract which was not revocated – Contracts made in accordance with the law shall be binding between parties – In case the sale is not committed to deliver and do his best to have the sold thing registered under the buyer, he/she cannot state that the agreement cannot have impact on him/her on the ground that he/she is not the one who was in possession of it or delivered it – Law n°45/2011 of 25/11/2011 governing contracts, article 64 and the Law of 30/07/1888 relating to contracts or obligations articles 263 and 264. Contracts or obligations law – Damages resulting from remboursement of cost of the thing purchased – Selling others properties knowingly is null – If the buyer did not know that it is others property, he/she shall be remboursed the price and be indemnified – When the claimant does not provide their calculation, they are determined in the appreciation of the Court – Law of 30/07/1888 relating to contracts or obligations, article 276. Contracts or obligations law – Damages for the added value to the house – The one who shall pay those damages – The buyer of the objects which does not belong to the saler, in case it is restituted to the owner, cannot claim the he/she added to it from the saler – Damages for the added value to the house are paid by the one who is given the property for preventing the unjust enrichment. Contracts or obligations law – Restitution of rent fees – The buyer of the object which does not belong the saler, in case it is restituted to the owner, cannot get the rent from it, because he/she is not the owne, he/she has no right over it. Commercial procedure – Penalty forcing the provisional execution – If there is final judgement without showing evidence to Court of non execution from the party who lost the case, it is not necessary to order the penality forcing the provisional execution.

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Facts: This case stated as civil before Rusizi Intermediate Court, successors of NZISABIRA Trojan against RWANDA FOAM that it sold to them the house which does not belong to it which is located in plot nº 33 at Kamembe and requested damages of amount paid in solding the house and amount used in its extention. RWANDA FOAM after losting this case, appealed before the High Court, Rusizi chamber, and decided that the subject matter of claim is under jurisdiction of Commercial Courts. The Commercial High Court seized decided that the claim of successors of NZISABIRA Trojan has no merit because of lack of non-doubtable evidences proving their arguments on the sale contract of the house NZISABIRA made with two different persons whose are RWANDA FOAM and successors of MPUNYU. The Commercial High Court decided also that in the judgments successors of Nzisabira intervened, the successors of MPUNYU were present, and did not request the intervention of RWANDA FOAM, means that they knew that they request it especially that the plot was not registrate to it. Successors of NZISABIRA appealed before the Supreme Court saying that the Commercial High Court did not take into consideration the evidences submitted; and requested that the contract made between them with RWANDA FOAM should be revoked and be restituted amount sold the house with the amount of its added value, moral damages for being disturbed on their parents property, rent fees of that house from its disowning, procedural fees, damages for being sold the house not belonging to RWANDA FOAM unknowingly, that shall be determined the penalty forcing the provisional execution by RWANDA FOAM. RWANDA FOAM stated that the appeal of the successors of NZISABIRA Trojan shall not be admitted because they does not indicates their non-doubtable identifications, which means that they lack of status and interest for filing a claim. For the contract used by the successors of NZISABIRA, RWANDA FOAM states that the appeallants did not submit to Court any evidence showing that the house in litigation was given by it. While for the damages requested by the appellants, RWANDA FOAM states that they have no merit because there is no evidences they submitted for them. Held: 1. The objection of lack of status and interest may be raised at any stage of the proceedings. They may be firstly raised before the appeal even though they may have decided on the first instance. It cannot prevent to be appealed with the case on its merit because the hearing is not closed at that level. Therefore, nothing could prevent RWANDA FOAM from raising them before the appellate Court. 2. The judgment rectifying and rectified judgment are complementary and considered together. It cannot be considered as an evidence submitted after the closing of the hearing while it was debated on it by both parties for respecting the right of defense. Then, the judgment RC 0098/14/TB/KMB rendered by Kamembe Primary Court on 6th March 2014 completing the judgment RC 0040/141/TB/KMB shows that the appellants were the children of NZISABIRA without doubt. The objection of RWANDA FOAM for inadmissibility of their claim and the fact that the judgment RC 0098/14/TB/KMB rectifying the previous judgment cannot be considered because it was submitted after the closing of the hearing, has no merit. 3. An agreement between the saler and the buyer and a commitment do his best to have the sold thing registered under the buyer, shall be binding between them. Therefore, the contract between RWANDA FOAM na NZISABIRA Trojan of 10th March 1992 is valid because RWANDA

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FOAM which is stating that it was not in possession of it or delivered him the sold house, did not prove the revocation of contract they made. 4. The Sale of others properties knowingly is null, shall be indemnified when the buyer did not know that it is others property. Then, the fact that NZISABIRA sold the house without knowing that it was not belonged to RWANDA FOAM, his successors shall be remboursed 5.500.000 Rwf that NSIZABIRA gave as price of the house and damages of 2.000.000 Rwf determined in the appreciation of the Court. 5. When a person makes an action for recovery of its immovable property to the possessor, the damages of added value of the house are given by one who is in its possession for preventing unjust enrichment. Then, the successors of NZISABIRA cannot be given damages of added value to the house because RWANDA FOAM did not sell its house but it was restituted to their owners. Therefore, they can request the added value to the possessor. 6. When a house is regiven to their owner; the buyer cannot request damages for rent to the saler because of lack of rights to rent. Thus, the successors of NZISABIRA shall not be given rent fees for the house because it does not belong to them. 7. When a case is definitely decided and no evidence submitted to Court showing that it shall not be executed, it is not necessary to order the penality forcing execution. Therefore, the penality forcing RWANDA FOAM provisional execution, has no merit. Appeal has merit in part. Appealed judgment is changed. Court fees to the defendant. Statutes and statutory instruments referred to: Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 2, 19, 20, 69 and 142. Law of 30/07/1888 relating to contracts or obligations, article 264, 276 and 282. No case referred to. Authors cited: François Terré et Philippe Simler, Le Droit civil, Les biens, Précis Dalloz, 7e éd., Paris, 2006, p. 406. Judgment I. BRIEF BACKGROUND OF THE CASE [1]This case started before Rusizi Intermediate Court as civil, the successors of NZISABIRA Trojan had a case against RWANDA FOAM requesting the damages as mentioned above, that Court decided that RWANDA FOAM must rembourse them amount of 5.500.000Rwfs given in saling of the house located on the plot nº 33 atKamembe. RWANDA FOAM appealed before the

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High Court, Chamber of Rusizi and decided that the the subject matter of claim is under jusdiction of Commercial Courts. [2] Before the Commercial High Court, the successors of NZISABIRA explained that the damage that they are requesting are based on the fact that on 10th March 1992 RWANDA FOAM sold the house to their parent NZISABIRA Trojan the house wich does not belong to it, and was located in the plot nº 33 at Kamembe, Rusizi District, for 5.500.000 Rwfs. The house was for commercial activities, and he extended it which increased its value. They said that that house was given back to the successors of Omar ABDULAZIZ represented by ASSIN Omar after winning the case RCA 0046/05/HC/CYG filed against the Republic of Rwanda represented by Minisitry of Land, Rehabilitation and protection of environment, and requested force intervention the successor of MPUNYU and of NZISABIRA, claiming the invalidity of land title nº VOL RVIII Folio 21» for that plot registrated undre MPUNYU Zacharie. [3] The Commmercial High Court decided that claim of the successors of NZISABIRA Trojan has no merit because of lack of consistent evidences proving their arguments. It explained that on 10th March 1992 NZISABIRA first of all has made contract of purchasing house with RWANDA FOAM for 5.500.000 Rwfs, and then it was discovered that there is another contract related to that house made with the successors of MPUNYU represented by NIYIBIZI Ruben as mentioned in the letter nº 18.04.081/4189 of 30th June 1993 where the Minisiter of public services and energy wrote to Commissioner General of taxes, requesting the transfer because the house was sold, and they do not provide any explanation to that contract that NZISABIRA made with two different persons. [4] The Court decided that in the judgments in which the successors of NZISABIRA has intervened with the successors of MPUNYU, which they did not request forced intervention of RWANDA FOAM, it is clear that they knew very well that there is no claim against it because also the plot was not registered to it, that also beyond of 18 years without transfer was another proof of non claim of that house. [5] The Court ordered that the successors of NZISABIRA must jointly pay to RWANDA FOAM Ltd 1.500.000 Rwf of procedural and advocate fees. [6] The successors NZISABIRA Trojan appealed before the Supreme court saying that Court disregardered the proofs submitted to it, and the Judge decided by emotion and taking the place of RWANDA FOAM Ltd saying that the successors of NZISABIRA have filed cases without forced intervition of RWANDA FOAM Ltd, means that they knew that it could not be reliabe. They request that contract made between NZISABIRA and RWANDA FOAM must be nulified, to be refund them the amount of the price of the house with its current value, damage of being disturbed in their parental property, the rent fees from the litigation till now, procedural fees, damage of being sold the house not belonging to RWANDA FOAM, to order the penality forcing execution RWANDA FOAM and provisional execution. [7] RWANDA FOAM states that the appeal of successors of NZISABIRA Trojan could not be admissible because they had no status and interest of filing a claim, but in a case the claim is receveid, the Court shall decided that it has no merit, and be ordered to pay the damage of being brought in court without reason, advocate and procedural fees.

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[8] The judgment was heard in public on 21st January 2014, on 25th February 2014 and on 29th April 2014, the successors of NZISABIRA Trojan represented by counsel NGARAMBE Raphaëland and HAKIZIMANA Théogène while Rwanda FOAM was represented by counsel MUHAYIMANA Isaïena and ABIJURU Emmanuel. II. LEGAL ISSUES AND THEIR ANALYSIS a. Whether the appelants do not have status and interests to file a claim. [9] The counsels for RWANDA FOAM say that the appeal of the successors of NZISABIRA Trojan should no be received because the appellant do not provide their consistent indentification, if all the 6 exists, if both are the successoors of NZISABIRA Trojan, because it is unbelievable that both have beyond 30 years old say to live in one house located to the place called at Cyapa. They say also that there is not any official document prooving their domicile and residence on that place, that even in the documents submitted to Courts contain wrong informations, they accept themselves that case RC 0040/141/TB/KMB till case RC 0045/141/TB/KMB rendered by KAMEMBE Lower Court replacing their birth certificate based on in giving those documents contain also faults where it stipulates that it was rendered on 30 th January 2013, with wong number etc... [10] They find also that the judgment RC 0098/14/TB/KMB which correct it, was submitted to Court by the successors of NZISABIRA after closing the hearing what is contradict with the article 69 CPCCSA because it wa submitted on 13th March 2014 without prior notifying to RWANDA FOAM because it was notified on 10th April 2014, thus it shall not be considered. [11] They say tha article 142of law nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure shows clearly that those reasons includes lack of status or interest to sue which intent to reject the claim are of the nature of public law and order, that it shall be raised by the Court on its own initiative, that also the articles 2 and 19 of the mentioned law provides conditions of admissibility of a claim. [12] The counsels for successors of NZISABIRA say that before the previous Court RWANDA FOAM had raised an objections of rejection of their claim because of default to indicate their identification, and they filed cases illegaly because any person has not filed its case and being recorded alone for having its proper file, but were joined together, the Judge has taken a fair decision, RWANDA FOAM has not appealled, then it cannot come again to that question. They say that the object of lack of status and interest is rised for the first time in appeal, that it shall not be accepted, that the appealed case was changed in commercial matters requested by RWANDA FOAM, and when it was civil it was never arose that objection. [13] The counsels for successors of NZISABIRA say that when those objections are considered, the Court shall decides that they have no merit because RWANDA FOAM did not refuse that NZISABIRA Trojan and her wife MUSOMAYIRE Marie were dead, that the right successors were their ascendant who appealed, that there is a case RC 0040/141/TB/KMB till RC 0045/141/TB/KMB rendered by KAMEMBE Lower Court replacing their birth certificate as provided by article 86 of Civil Code Book I, showing that both are mature, and each one has paid his court fees in filing a claim.

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[14] For the irregularity in that judgment, counsels for successors of NZISABIRA say that it is the irregularity in the form and that no procedural act shall be considered void because of an irregularity in the form, that before the pronouncement the correction was made, on 06th March 2014, the Primary Court of Kamembe rendered it, it rendered anather judgment RC 0098/14/TB/KMB which corrected it, and it was corrected the number of the judgment, the date of hearing, and the date of birth of NZISABIRA Chantal, then those cases shall be refers to by the Court in admitting their appeal. View of the Court For the receivability of the objection of non status and interest of the claimants [15] The article 142 of the law nº 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, (CPCCSA) provides that “Request for inadmissibility of a claim may be made by a party or Court at its own motion. Request for inadmissibility of a claim shall be raised by the court on its own initiative if its reasons are of the nature of public law and order such as exceeding the time limit within which to appeal or lack of status, capacity or interest to sue”. While article 143, first paragraph stipulates that “The judgement as to inadmissibility of a claim may be appealed alone if that judgement can lead to the final hearing”. [16] The Court finds that the objection of lack of status of the appellants of filing a claim and lack of interest of claiming are of the nature of public law and order, and shall be arised for the first time in appeal, that also even if there were decided on them in previous Court, it canno be an obstacle to appeal them with the hearing in merit because the lack of status is not stoped to that level, then there is no obstacle to RWANDA FOAM to arises those objections in appeal in this Court. Basis of the objection rised [17] For the required condition of admissibility of a claim, article 2 first paragraph of the law nº 21/2012 of 14/06/2012 mentoned, provides that a claim cannot be accepted in court unless the plaintiff has the status, interest and capacity to bring the suit., while the article 19, 2º of that law related to the contents of the claim, it provides that a claim shall indicate the names, profession and residence of the plaintiff and if necessary, the names, competence and residence of his/her legal representatives. [18] The Court finds that the judgment RC 0098/14/TB/KMB rendered by Kamembe Primary Court on 6th March 2014 completing the judgment RC 0040/141/TB/KMB till RC 0045/141/TB/KMB rendered by that Court as provides by the article 153 of law nº 21/2012 of 14/06/2012 mentioned, then taken together indicate that the appellants are the children of NZISABIRA Trojan, that they resides at the cell of Kamurera, Sector of Kamembe, District of Rusizi, Western province, That both are mature for claiming themselves, they have status and interest of claiming because they follow the property belonging to their parents as their legal successors.

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[19] The fact that the counsels for RWANDA FOAM say that the case RC 0098/14/TB/KMB correcting the other shall not be considered because it was submitted after closing the hearing as contrary by the article 69 of law nº 21/2012 of 14/06/20121, Court found that it shall not be considered because that article, in exception, accept that it shall be given the a new and relevant document or fact which can help to demonstrate the truth is discovered by one of the parties, he/she may, before judgment is rendered, present it to the court after having communicated it to the other party for respect of defense rights. The Court finds also that both parties have given anough time to discuss to those proofs before deliberation.Therefore, as explained above, that judgment together with that correcting it, they made one judgment and they cannot be separated (art. 153 of the law nº 21/2012 of 14/06/2012). b. Whether the contract between RWANDA FOAM and NZISABIRA Trojan is valid. [20] The counsels for successors of NZISABIRA say that the Court has not considered the sale contract of 10th March 1992 between RWANDA FOAM and NZISABIRA Trojan but considered the other between him and MPUNYU Zacharie without ndicating the time of drafting and the parties signing it because no party in the case has mentioned it during the hearing for discusson, if necessary to be attacked by the refusing party as forgery document, that in the letter nº 0009/16.03/RNRA/02W of 25th October 2011 written by National Land Center responding the letter wrote by MPAYIMANA, counsel for RWANDA FOAM, that institution has confirmed the lack of that sell contract between MPUNYU and NZISABIRA, explaining well the history of the plot nº 33, indicating that it was already registered under land title volume R. VIII Folio 21“ registered to MPUNYU Zacharie, which was invalided by the judgment RC 2169/R52000 rendered by Cyangugu Primary Court on 15th July 2002 and order the plot to be provisionaly registered to the successors of Omar ABDULAZIZ. [21] The counsels for successors of NZISABIRA say also that another proof proving the existence of the sale contract of the plot nº 33 between RWANDA FOAM and NZISABIRA which it refuse to show for escaping the responsibility of selling the plot not belonging to it,is the letter nº 73/MAT/171 writeen by its Managing Director to NIYONDAMYA Jacques, son of MPUNYU Zacharie, and notified NZISABIRA saying tha the transfer between RWANDA FOAM and successors of MPUNYU on one hand and transfer between RWANDA FOAM on another hand has delayed by Ministry of public services and energy which requested that it be shown the land title, the Managing Director of RWANDA FOAM requested him to do his best for helping to find that land title which was in Rwanda Commercial Bank (BCR), that if find, he shall notify him after reciving it for finalizing those transfer. [22] They continue saying that the previous Court decided by the confiming of the invalidity of the sell contract between RWANDA FOAM and NZISABIRA and replaced by the one between the successors of MPUNYU Zacharie represented by NIYIBIZI Ruben, that is the existence of other cases about the property located on the plot nº 33, but the successors of NZISABIRA were not forced intervened RWANDA FOAM for explaining how it sold them what is not belong to it, 1 Article 69 CPCCSA provides “No documents in general, conclusions of the case and the document containing provisions pertaining to the case may be deposited with the court after the hearing has been declared closed. However, if before deliberations, a new and relevant document or fact which can help to demonstrate the truth is discovered by one of the parties, he/she may, before judgment is rendered, present it to the court after having communicated it to the other party. The court alone shall assesse whether it is necessary to re-open hearing.”

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because they knew its non-liabitity, that it disregardered that there is no provision removing their rights of suing RWANDA FOAM after those cases when their rights were violated. [23] The counsels for RWANDA FOAM explain the contract used by the successors of NZISABIRA saying that MPUNYU was a seller of the matress ofRWANDA FOAM, he stopped paying, then NZISABIRA who was a businessman negotiates with MPUNYU and paid RWANDA FOAM, NZISABIRA take the house of MPUNYU, successors of NZISABIRA when they see the contract filed a claim against RWANDA FOAM. [24] They find that the appeal of the successors of NZISABIRA for requesting that sell contract between RWANDA FOAM and NZISABIRA be valid while it is impossible. [25] They explain that article 276 of Civil Code Book III provides that there is no valid sell if is made by non owner, that the related sell shall not be taken into Court for being nulified (nullitéabsolue), that there is no proofs shown in Court by the appellants proving that the house is in the plot nº 33 Kamembehas belonged to RWANDA FOAM, that for the immovable property law provides the only acceptable is land title, that it was registrated to MPUNYU. [26] They continued saying that there is no proofs that the appellants submitted to Court showing that the house which is in that plot was given by RWANDA FOAM, so as to prove that it gave the keys of the house, for having rights of claiming to court their violated rights, they do not understand how the purchaser shall claim the depossession of the house when the seller was not deliver it to him, when he may first of all claim for non delivery of the house purchased. [27] The counsels for RWANDA FOAM say that it has give the proof beyond reasonable doubt from the case file of the successors of NZISABIRA with ASSIN Omar and the Republic of Rwanda, that there is sell contract between MPUNYU as owner of the house and NZISABIRA as the letter nº 18.04.081/4189 Minister of publc services and energy wrote to the Commisioner General of taxes on 30th June 1993 notifying him that Succession MPUNYU as seller with NZISABIRA Trojan as purchassor, requested the transfer of the plot nº 33 located at Kamembe that the sale was for 5.700.000 Rwfs, and no persons did not indicated the missing of that document or that is forgery. [28] They say that the appellants did not indicate the receipt where they paid the tax of that plot during 18 years they possesses that plot, for showing if they paid the tax of that plot on the name of RWANDA FOAM, that even in the expert report made by TUYIZERE Emmanuel on 15th October 2010, it is clear that the house belonged to MPUNYU, that it cannot be registered under RWANDA FOAM. [29] The counsels for RWANDA FOAM concluded that the fact that it was made a document called sell contract between NZISABIRA and RWANDA FOAM, has no legal effects because the appellants was not filed their claim basing only to the presence of that document, but the claim is the request of damage from the depossession of the commercial house located on the plot nº 33. Sold to our parent while it was not belongs to him. Even if the document was made, it cannot help them when NSIZABIRA is involved, and when it was no drafted by RWANDA FOAM, because it shall not drafed it and making the article 6 providing that they made, election of domicile at Cyangugu when it did not have the seat there, office or activities. This kind of

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document has no legal value for having legal effect. The fact that NZISABIRA made again contract with MPUNYU means that he believed in the invalidity of the previous contract with RWANDA FOAM. View of the Court [30] The Article 64 of the Law nº 45/2011 of 25/11/2011 governing contracts provides that contracts made in accordance with the law shall be binding between parties. They may only be revoked at the consent of the parties or for reasons based on law. They shall be performed in good faith. [31] For sell contract, the article 263 of the Law of 30/07/1888 Instituting Cvil Code Book III, provides that sell is a contract of which one accept to deliver goods and the other pay the agreed price. Shall be made on authentic deed or simple document, while its article 264 provides that sell is perfect between contracting party and seller deliver the selling good when they agreed on the good and on the price even if the good is no present and price was not paid. [32] Fot the selling of immovable property, the article 282 of the mentioned law provides that duty of delivering immovable is perfect on the side of the seller when he gives keys if it is a house, or when he gives document indicating the owner. [33] In the document in file called sell contract made before the Notary, it indicates that on 10th March 1992, RWANDA FOAM has sold to NZISABIRA Trojan the house located in the plot nº 33 at Cyangugu for 5.500.000 Rwfs, and agreed to do his best so as that house be registered under his name (articles 1 to 4). [34] In the letter nº 73/MAT/171, written by the General Director of RWANDA FOAM to NIYONDAMYA Jean Jacques, requesting him to give him the land title in hand of BCR for the transfer of that plot between the succcessors of MPUNYU Zacharie and RWANDA FOAM SARL be done on one hand, and between RWANDA FOAM and NZISABIRA Trojan on another hand, it means that RWANDA FOAM perfomed the content of the contract said above. [35] The Court finds that the contract made between RWANDA FOAM andNZISABIRA shall be binding between parties because it does not explain its nullification, so it cannot escape its effects. [36] For the argument of RWANDA FOAM that it has not owned the house, that it did not deliver it to NZISABIRA, the Court finds that there is no merit, when it said that MPUNYU gave it for paying its loan, and sold to NZISABIRA remboursing the loan of RWANDA FOAM on behalf of MPUNYU, it is in framework that the house is owned by him, prior concluding the mentioned contract, where RWANDA FOAM sold to NZISABIRA the house which is in plot nº 33 at Cyangugu, and participates considerably in the formalities of transfer, which was anticipated by the death of NZISABIRA, the after arose the case of the successors of Omar ABDULAZIZ claiming the nullification of land title registered to MPUNYU Zacharie. [37] For that after that contract there was another between MPUNYU and NZISABIRA, the Court finds that the parties did not provide any thing for it, for deciding that it existed, except

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what is said in the letter nº 18.04.081/4189 the Minister of public service and energy wrote to the General Commissioner of taxes on 30th June 1993 that it sold to him for 5.700.000 Rwfs, and that even transfer which was being requested by RWANDA FOAM should be made between the successors of MPUNYU Zacharie and RWANDA FOAM SARL on one hand, and between RWANDA FOAM and NZISABIRA Trojanto on another hand. c. Basis of the damages requested by the successors of NZISABIRA Trojan [38] The counsels for successors of NZISABIRA say that the sell contract that NZISABIRA made with RWANDA FOAM is valid because there it did not show any other contract, that it must be binding between them as provided by the article 64 of law nº 45/2011 of 25/11/2011 governing contracts, it may only be revoked at the consent of the parties or for reason sbased on law. They shall beperformed in good faith. [39] They say that in the article 5 of that contract, that it is provided that RWANDA FOAM is represented by its Managing Director as seller and may assume all consequences that NZISABIRA as purchasor shall meet when he is distuberd in his rights on the house sold which os in plot nº 33 located atKamembe, it is for that the successors of NZISABIRA, as the successors having rights on the property of their parent, they request the respect of its engagment, because the expectation happen when ASSINI Omar as successor of Omar ABDULAZIZ and ZURA won definitively the judgment removing them in the house sold with RWANDA FOAM, then it must rembourse them the amount of the price the house (303, 307 al 1 paragraph 1 and 4, 310 of Civil Code Book III) equal to 5.500.000 Rwfs with its value to day as evalueted by the expert of 44.333.488 Rwfs, rentfees of 37.100.000 Rwfs continued to be calculated till the pronouncement of the judgment (700.000 Rwfs x 53 months the house s out of their possession) and the damages for procedural fees of 3.000.000 Rwfs before the previous Court and 5.000.000 Rwfs before the Supreme Court. [40] Based on articles 258, 276 of Civil Code Book III, the counsels for successors of NZISABIRA explained that the sell of others property is null and shall be charged damage when the buyer did not know that the sold goods belongs to other person, that the contract between NZISABIRA and RWANDA FOAM is null because it has sold others good knowingly, and this harm their life project, they stressed them when their parent have saved for them, and disturb their project plan based to thei rproperty,so, it must give for it moral domages of 6.000.000 Rwfs. [41] The counsels for successors of NZISABIRA find that for not delaying them, and in the interest of the justice, in case the judgement become definitive, it shall order peanlity forcing RWANDA FOAM the execution by paying100.000 Rwfs of default to pay at time calculated each day, and order provisional execution. [42] The counsels for RWANDA FOAM say that those damages have no merit because the claimants did not provide their proofs, that expert report of the house is their own draft and that it show that it belongs to MPUNYU Zacharie, thus it cannot be based on the case against RWANDA FOAM. They say that the successors of NZISABIRA did not provide the response on the request of the tax receipts, when each one know that to pay tax is a duty, thus they do not provide any basis in requesting those damages. They say also that the claimant of those damages

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do not provide the documents which gave them the rights of constructing the house they added in in the plot showing that they requested them in the name of RWANDA FOAM. View of the Court - For the remboursment of the price of the house and damages of 6.000.000 Rwfs. [43] The Artcle 276 of Civil Code Book III provides that sell of others property is null, can be imnified when the buyer did not know that it is others property. [44] This article explain that the sell of others property is null, that the buyer without knowing that it did not belong to the seller shall be indemnified. [45] As explained above, RWANDA FOAM sold to NZISABIRA the house located in the plot nº 33 atCyangugu, and he was not aware that it does not belong to RWANDA FOAM because it was found in the judgment RCA 0046/05/HC/CYG where the successors of Omar ABDULAZIZ represented by ASSIN Omar filed against Republic of Rwanda represented by the Minisitry of Land, Rehabilitation and protection of environment, requested to nullified land title nº VOL RVIII Folio 21» of that plot registered to MPUNYU Zacharie, that the house belong to them, and to be given it, thus that contract is null, then the successors of NZISABIRA shall be remboursed 5.500.000 Rwfs that NSIZABIRA paid as a price of the house, and be given damages for it. [46] For the value of those damages, the Court finds that those requested by the successors of NZISABIRA do not provide their calculation, therefore in the appreciation of the Court, they shall be given 2.000.000 Rwf. - Damages of the value of the house and the adding [47] For the 44.333.488 Rwfs of actual value of the house, that the successors of NZISABIRA are requesting basing on report they submitted made by an expert, the Court finds that they shall not be given them because the house was sole their owner, what they said that they add it belong to them even if now, thus they cannot be claimed to RWANDA FOAM. [48] This much with the point of view of the Schoolars François Terréand Philippe Simler, who explain that when someone makes an action for recovery of his immovable property, those damages which were added to the house which increase its value, are paid by the one who is given back the property for preventing the unjust enrichment2. 2 Le possesseur, spécialement s‟ils‟est cru propriétaire et si la possession a duré un certain temps, a pu entreprendre sur le bien dont il est évincé des travaux constitutifs d‟améliorations. En laisser purement et simplement le bénéfice au revendiquant eût procuré à ce dernier un enrichissement injustifié. La jurisprudence, s‟inspirant de la tradition romaine et de dispositions éparses dans le Code civil, a retenue le principe de l‟indemnisation du possesseur évincé, en fonction, non plus, cette fois, de sa bonne ou mauvaise foi, mais de la nature des travaux entrepris ou frais exposés, appelés impenses“. Le Droit civil, Les biens, par François Terré, Philippe Simler , p. 406.

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- For the rent fees of 37.100.000 Rwfswhich shall be calculates till pronouncement of the judgement [49] The Court finds that the successors of NZISABIRA shall not get the rent fees of the house because it does not belong to them and the house was restituted to their owner as mentioned above, thus they shall not have rights to the rent of that house when they restituted it to the successors of Omar ABDULAZIZ till now. - Procedural and advocate fees at all level of instance of 3.000.000 Rwfs before the first instance Court and 5.000.000 Rwfs for the Suprem Court. [50] The Court finds that the successors of NZISABIRA must be given procedural and advocate fees because they engage some expensence for following up this case at all levels, but they do not provide how they calculate them, thus in the appreciation of the Court, they must get 800.000 Rwf at all level of instances which includes procedural and advocate fees. [51] The Court finds that all damages that RWANDA FOAM must pay the successors of NZISABIRA Trojan are equal to 5.500.000 Rwfs of price of the house + 2.000.000 Rwfs of damage + 800.000 Rwfs of procedural and advocate fees, both are 8.300.000 Rwfs. - Penality forcing execution RWANDA FOAM for provisional execution. [52] The Court finds that this judgment is heard to the last instance, thus is not necessary to order the provisional execution. [53] The Court finds also that there no proofs that RWANDA FOAM will not execute the judgment for ordering penality forcing the execution. III. DECISION OF THE COURT [54] It decides to receive the objection of the lack of status of the claimants and lack of interest submitted by RWANDA FOAM. [55] It decides that they have no merit. [56] It decides that the appeal of the successors of NZISABIRA Trojan has merit in part. [57] It orderRWANDA FOAM to pay the successors of NZISABIRA Trojan 8.300.000 Rwfs of damages as explained above. [58] It order RWANDA FOAM to pay 24.000 Rwfs of court fees, the payment default of which, within 8 days, shall be deducted from its assets by government coercion. [59] It says that the judgment RCOM 0248/12/HCC rendered by the Commercial High Court on 26th November 2012 is changed.