TEMAHAGARI v. KICUKIRO DISTRICT ET. AL.

TEMAHAGARI v. KICUKIRO DISTRICT ET. AL.

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-12-12 - Case/document no.: RADAA 0001/13/CS - Collection: Supreme Court

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TEMAHAGARI v. GICUKIRO DISTRICT ET. AL. [Rwanda SUPREMME COURT – RADAA 0001/13/CS (Nyirinkwaya, P.J., Mukanyundo and Hitiyaremye, J.) 12 December 2014] The jurisdiction of the Supreme Court – The jurisdiction of the Supreme Court as the court of appeal – The Supreme Court has jurisdiction to hear at the appellate level cases decided at the second instance by the High Court, be it Commercial or Military High Court cases decided basing on a non-existing law or decided by an incompetent court – The Organic Law N° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, article 28. The means of determining the value of the land subject to litigation – the value of the plot of land subject to litigation should not be based on its cost only but it should be determined by an expert agreed upon by the litigants if they fail to chose him the court chooses for them. Facts: Sinyigaya sued the District of Kicukiro before the Intermediate Court of Nyarugenge requesting that the decision prohibiting him from building be annulled, the plot be registered in his names and be awarded damages. The district of Kicukiro forcebly intervened and Temahagari and Kalisa intervened voluntarily. The District of Kicukiro in its defence argued that Temahagari bought the plot of land and it spend along timewithout having any activity carried out thereon,

and whithout knowing his whereabouts and then the administration transferred it to Kalisa, but later on decided that the plot of land be restituted to him and find another plot of land for Sinyigaya. That court held that the decisions of Kicukiro district remain intact, since Temahagari was the owner of that land in accordance to customs before it was transferred to Kalisa and ordered the district of Kicukiro to pay Temahagari Justin damages for proceedings and the counsel’s honorary, and to compensate Sinyigaya Silas with another land (bona fide acquirer). Sinyigaya Silas appealed before the High Court asserting that the first instance judge disregarded the land registration certificate registered on Rugwabiza Etienne who sold him the plot of land and article 23 of the Ministerial order N° 002/2008 of 01/04/2008. That Court held that the ruling in the first instance case is modified in its entirety basing on articles 36,44 and 49 of the law of 31/7/1912 instituting the civil code book II relating to property and articles 4 and 23 of the Ministerial order N° 0002/2008 of 01/04/2008 determining the land registration process indicating that the evidence proving the owner of the land is based on the document accepted or issued by the State, and ordered the District of Kicukiro to restitute that plot of land to Sinyigaya and therefore be registered in his names, to pay him damages,

the counsel’s honorary and the proceedings. Temahagari appealed before the Supreme Court asserting that on the course of the hearing Sinyigaya raised the objection of lack of jurisdiction in relation to the claim instituted. Temahagari explained that his appeal falls within the jurisdiction of the Supreme Court basing on article 28, paragraph 2 of the Organic law determining jurisdiction of the Supreme Court which accords this court the jurisdiction to hear at the second appeal cases based on a repealed law or articles of law and the High Court based on article 36,44 and 49 of the civil code book II yet they were abrogated by the organic law N° 08/2005 of 14/07/2005 determining the the use and management of land that was in force by the time the judgment was rendered, article 7 of that law provides that it protect on equal footing land rights acquired through customs, written laws, and again article 88 provides that all articles prior and contrary to this organic law are hereby abrogated and this court has the jurisdiction based on article 28 of the Organic law determining the

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jurisdiction of the Supreme Court since the object matter of the case has the value exceeding 50,000,000 Rwf as indicated by expertise. For Sinyigaya, he asserts that there no where the organic law 14/07/2005 determining the use and management repeals articles 36,44 and 49 CCB II or that law in itself, and Kalisa asserts that the law N° 43/2013 of 16/06/2013 governing land did not repeal the law of 31/07/1912 but instead it came to settle various issues relating to land, whereas the law of 1912 governed different properties including land. With regard to the jurisdiction based on the value of the object matter in this case, it is the ruling ordering the administration to do something and the object matter cannot be given a pecuniary value and in case the object matter may be based on the value of the plot of land there should be basis on the price of the plot of land as paid Sinyigaya which is 6,000,000 Rwf. Held: 1. The Supreme Court also has jurisdiction to hear at the appellate cases decided at the second instance by the High Court, be it Commercial or Military High Court cases decided basing on a non-existing law, or decided by an incompetent court 2. Article 7 of the organic law N° 08/2005 of 14/07/2005 determining the use and management of land did not abrogate articles 36, 44 and 49 CCB II since that article relates to the transfer of land by testament, purchase, donation, exchange and land sharing or any other accepted under customs, whereas articles 36,44 and 49 CCB II provides for the title proving the plot’s owner issued by the competent organ in land management.

3. The value of the plot of land that is object matter should not be based on its price only, since the amount of money of its price may be below or above its real value, but instead there should be the appointment of an expert agreed upon by the parties to determine that value, failing which he or she shall be appointed by the court. The appeal is not under the jurisdiction of the Supreme basing on article 28 paragraph 2 of the Organic Law N° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court; Before taking the decision on the objection of lack of jurisdiction based on article 28 point 2 and 7 and paragraph 4 of the law stated above an expert must be appointed to determine the real value of the plot of land. The hearing will be resumed and court fees are suspended. . Statutes and statutory instruments referred to: Organic Law N° 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court,article 28. Law of 31/07/1912 instuting Civil Code , Book II,article 36,44,49. Organic Law N° 08/2005 of 14/07/2005 determining the use and management of land article 7 No cases referred to. Judgment I. BACKGROUND OF THE CASE

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[1] Sinyigaya Silas sued the District of Kicukiro before the Intermediate Court of Nyarugenge asserting that he bought with Rugwabiza Etienne the N° 9318 located in Kicukiro district on which there was the foundation for 6.000.000Frw, that plot had all titles but on 19/01/2010 the mayor of Kicukiro district wrote him a letter stoping him from continuing to raise a building on that plot, he thus request the annulment of that decision so that he can continue to buil and the award of damages. [2] The district of Kicukiro sought the intervention of Temahagari Justin. Kalisa Floribert whp was given that plot by the City of Kigali and sold to Rugwabiza Etienne who later on sold to Sibyigaya Silas voluntarily intervened in this case. [3] The district of Kicukiro defended itself asserting that Temahagari Justin bought the plot before Kalisa Floribert, which passed long time in vacancy without his whereabouts and Kalisa got it from the administration, where Temahagari Justin reappeared and claimed his plot, the administration conducted investiagtion and it was found that the plot really belonged to him and ordered that it be restituted to him and Sinyigaya Silas be given another plot. [4] The Intermediate Court of Nyarugenge rendered the judgment N°RAD 0026/10/TGI/Nyge on 19/01/2012 and held that the decision taken by the district of Kicukiro on 05/08/2010 is valid since Temahagari

Justin owned that land under customary regime before it be given to Kalisa Floribert, article 7 of the organic law No 08/2005 of 14/07/2005 on use and management of land in Rwanda provides that the right over land emanating from customs and written are equally protected. [5] It also held that the district of Kicukiro has to pay Temahagari Justin damages for proceedings and counsels honorary equal to 1, 200, 000 Rwf, and to compensate Sinyigaya Silas with and other plot (bona fode acquirer) [6] Sinyigaya Silas appealed before the High Court asserting the first instance judge did consider the certificate of registration of 25/08/2009 registered on Rugwabiza Etienne who sold the plot and article 23 of the Ministerial order No 002/2008 of 01/04/2008 determining the process of land registration which provides that the certificate of registration uncontestingly proves the right over land. [7] The High Court rendered the judgment RADA 0006/12/HC/KIG on 09/04/2013 and held that the ruling in the first instance judgment changed in its entirety basing on articles 36, 44 and 49 of the law of 31/07/1912 instituting the civil code book 2 and articles 4 and 23 of the Ministerial order No 0002/2008 of 01/04/2008 determining the process of land registration that indicates that the certificate proving the owner of the plot is based on the document recognized or issued by the

State uncontestingly proves the right of its holder and that right cannot be infringed even the certificate was issued basing on the contract of transfer of ownership that is rescindable or voidable, except the provisions of article 49, the cause dissolution or nullity of the contract give raise to the action for damages only. [8] It ordered the district of Kicukiro to restitute Sinyigaya Silas the plot N° 9318 and be registered on him, to award him 1,000,000 Rwf of damages and 500,000 of the counsel’s honorary and proceedings fee. [9] Temahagari Justin appealed before the Supreme Court on 06/05/2013. The hearing was publicly held, in presence of Temahagari Justin assisted by Counsel Nemeyabahizi Jean Paul and

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Counsel Dukeshinema Béata, the district of Kicukiro represented by Me Umwali Claire, Sinyigaya Silas represented by Counsel Ntambara Emmanuel and Kalisa Floribert represented by Counsel Ntwali Justin and the parties argued on the incident of incompetence invoked by the counsel’s of Sinyigaya Silas.

LEGAL ISSUES AND THEIR ANALYSIS To know the appeal of Temahagari Justin is not in the jurisdiction of the Supreme Court basing on article 28 paragraph 2, point 2of the organic law No 03/2012/OL determining the organization, functioning and jurisdiction of the Supreme Court [10] Counsel Nemeyabahizi Jean Paul the counsel of Temahagari Justin asserts that his appeal falls under the jurisdiction of the Supreme Court basing on article 28, paragraph 2, point 2 of the organic law determining organization, functioning and jurisdiction of the Supreme Court that gives the Supreme Court the jurisdiction to hear the second degree appeal judgments based on a non- existing law or articles of laws since the High Court based on articles 36 and 44 of CCB II yet they were abrogated by the organic law No 08/2005 of 14/07/2005 on use and management of land in Rwanda that was in force by the time the judgment was rendered. [11] He explains that that law in its article 7 provides for that it protects on eqaul footing the rights over land acquired through customs and those acquired through written laws, it also provides that, under article 88, all articles of laws prior and contrary to this organic law are hereby repealed, this imply that article 36, 44 and 49 of the CCB II were repealed since they are contrary to article 7 of the law of 14/07/2005 stated above. [12] Counsel Ntambara Emmanuel the

counsel of Sinyigaya Silas in his explanations with regard to the incident asserts that there is no way the organic law No 08/2005 of 14/07/2005 on use and management of land in Rwanda repeals articles 36, 44 and 49 CCB II or that law in itself. [13] Counsel Ntwali Justin the counsel of Kalisa Floribert assert that the law No43/2013 of 16/06/2013 governing land is the one that repealed the law of 31/07/1912 instituting the civil code book two as it recalls it in the preamble. [14] Me Umwali Claire the counsel of the Kicukiro district asserts that the law governing land of 16/06/2013 did not repreal the law of 31/07/1912, instead came solving various issues relating to land yet the law of 1912 governed various properties including land.

THE VIEW OF THE COURT [15] Article 28, paragraph 2, point 2 of the organic law No 03/2012/OL determining the organization, functioning and jurisdiction of the Supreme Court provides for that the Supreme Court has jurisdition to hear the second degree appeals judgment based on a non-existing law or articles of laws. [16] With regard to articles of the law of 31/07/1912 instituting the Civil Code Book II subject of dispute, article 36 provides for that: “the ownership of land is legally proven by the certificate of registration of rights over land uncontestingly proves the rights of its holder and the lease and the rights of immovable of another person written therein” article 44 provides for that: “the right of ownership, stipulated under the certificate is not attackable even if it was issued basing on a

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rescindable or voidable transfer of ownership contract, or the court decision confirming the succession obtained in fraud. Except the provisions of article 49, the cause of dissolution or an error in the court decision confirming the succession give raise to action for damages” and article 49 provides for that in case there is ground that may led to the dissolution or nullity of the transfer of an immovable the person who transferred it can claim its restitution in case it is still in the hands of the person to whom he transferred it as it was, and he claim for damages. [17] With regard to the law No 08/2005 of 14/07/2005 on the use and management of land in Rwanda that is also subject to argument, its article 7 provides that: “This organic law protects equally the rights over the land acquired from custom and the rights acquired from written law. With regard to law, owners of land acquired from custom are all persons who inherited the land from their parents, those who acquired it from competent authorities or those who acquired it through any other means recognized by national custom whether purchase, gift, exchange and sharing” and article 88 of that law provides for that “All previous legal provisions contrary to this organic law are hereby abrogated.” [18] With regard to the argument of Counsel Nemeyabahizi Jean Paul that there is contradiction between those two articles

of laws, the Court finds that it is not the case since article 7 of the law of 14/07/2005 on use and management of land in Rwanda relates to the transfer of land based on legacy, sale, donation, exchange and sharing or any other customary way, and article 36, 44 and 49 CCB II provides about the writing that proves the owner of the land issued by the competent authority in terms of management of land, that land can emanate from legacy, sale, donation, exchange, sharing and any other way recognized by the law. [19] The Court finds that by the time the judgment was rendered before the High Court the provisions of those articles 36, 44 and 49 CCB II was endorsed by the Ministerial Order of 01/04/2008 determining the land registration process implementing the organic law N° 08/2005 of 14/07/2005 on use and management of land in Rwanda. [20] The Court thus finds that the arguments of counsels of Temahagari Justin that article 7 of the N° 08/2005 of 14/07/2005 on use and management of land in Rwanda repealed article 36, 44 and 49 of the CCB II are not founded, thus his appeal does not fall under the jurisdiction of the Supreme Court pursuant to article 28, paragraph 2, point 2 o the organic law No 03/2012/OL determining the organization, functioning and jurisdiction of the Supreme Court. To know whether the appeal of Temahagari Justin is not under the jurisdiction of the Supreme Court

basing on article 28 paragraph 2, point 2 and paragraph 4 of the organic law no 03/2012/OL determining the organization, functioning and jurisdiction of the Supreme Court [21] Counsel Nemeyabahizi Jean Paul the counsel of Temahagari asserts that the appeal falls under the jurisdiction of the Supreme Court pursuant to article 28, paragraph 2, point 2 and paragraph 4 of the organic law no 03/2012/OL determining the organization, functioning and jurisdiction of the Supreme Court since the object matter of the case has the value exceeding 50,000,000 Rwf as indicated by the expertise conducted on the plot object matter of the case with the value of 147, 600, 000 Rwf; [22] Counsel Ntambara Emmanuel the counsel of Sinyigaya Silas and Counsel Ntwali Justin the counsel of Kalisa Floribert raised the incident of lack of jurisdiction by the Supreme Court arguing

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that the object matter in this case is the decision ordering the administration to do something, thus the object matter cannot be calculated in terms of money. [23] They assert that even though the court may hold that the object matter is based on the value of the plot, that value is less than 50, 000,000 Rwf since no damages ordered by the Court equal to 50,000,000 rwf, and no disputes relating to the value of the object matter of the case so that the judge can determine that value. [24] They also assert that there should not be based on the value of 147, 600, 000 rwf mentioned in the evaluation as it is based on non-existent measures of 50,000 Rwf per m2 yet the ministerial order No 0001/16.00 of 23/11/2009 determining basic prices of land in the City of Kigali provides for the price of 873 rwf/m2 or 1135Rwf/m2 and the expertise conducted at the second degree appeal should be considered as it was conducted earlier so that it be debated on by all parties. [25] They also assert that in case the court may rule that the value of the object matter is based on the value of the plot of land, there should be basis on the price Sinyugaya paid for the plot equal to 6,000,000 rwf. [26] Me Umwali Claire the counsel of the district of Kicukiro asserts that the appeal does not fall under the jurisdiction of the Supreme Court as no damages equal to 50,000,000 Rwf that were awarded and no debate relating to the value of the object matter that took place so that the judge could determine that value. She adds that the expertise should not be given consideration as it was introduced at the appellate level and was not debated on.

THE VIEW OF THE COURT [27] Article 28 of the organic law No 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, under paragraph 2, point 7 provides that the this court hear in the second degree appeal cases in which at least damages equal to 50,000,000 Rwf or with the object matter whose value determined by the judge in case of disputes equals that amount and the point preceding the last one provides that in other cases, the jurisdiction of the Supreme Court is determined basing on the amount of money, the value of the object matter of the case and the value of the basis of the contract in accordance with the provisions of point 7. [28] With regard to this case, it is obvious that the jurisdiction of the Supreme Court should not be based on damages awarded since those awarded are less than 50,000,000 rwf, and neither can it be based on the value of the object matter determined by the judge since Sinyigaya Silas did not include the value of the plot in the claim and the judge did not determine it and there was reason to determine it as that was not an issue in the case. [29] The court however finds that the fact that there is no value determined by the judge in lower courts as that was not the object matter so that they would have been debated on, does not imply that the value cannot be determined before the Supreme Court

when it becomes necessary for examining its jurisdiction based on the value of the object matter. This was held in the case RCAA 0015/09/CS rendered by the Supreme Court on 05/11/2010 in Nyirabizimana Zilipa v Musoni Ndamage Thadée. [30] With regard to determination of the value of the plot object matter of the case, the Court finds that there should not be basis on the price of that plot by the time Sinyigaya Silas bought or by the time Temahagari Justin bought it since the amount of the price can be less or more than the actual value of the object matter depending on various reasons including the increase or decrease of

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market prices, the agreement between the buyer and the seller where one of them can accept the disproportionate price due to their own reason, and so on. [31] The court also finds that there should not be basis only on the expertise produced by Temahagari Justin in determining the real value of the plot as the parties do not agree upon mentioned therein of 147, 600,000 Rwf, instead there has to be an expert to determine that value in agreement of the parties or appointed by the Court in case the latter may fail to agree on him/her. III. COURT DECISION: [32] It holds that the appeal of Temahagari Justin is not under the jurisdiction of the Supreme Court pursuant to article 28, paragraph 2, point 2 of the organic law No 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court. [33] It holds that before ruling on the incident of lack of jurisdiction based on article 28 paragraph 2, point 7 and paragraph 4 of the organic law No 03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, there must be the appointment of an expert who will evaluate that plot No 9318 located in Kicukiro District. [34] It holds that the hearing will be resumed on 17/01/2015 with appointment of the expert who will determine that value. [35] It declares the court fee is suspended.