TWAGIRAYEZU ET AL v TWAGIRAYEZU ET AL

TWAGIRAYEZU ET AL v TWAGIRAYEZU ET AL

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2021-12-10 - Case/document no.: RS/INJUST/RC 00007/2020/SC - Collection: Supreme Court

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TWAGIRAYEZU ET AL v TWAGIRAYEZU ET AL [Rwanda SUPREME COURT – RS/INJUST/RC 00007/2020/SC– (Ntezilyayo, P.J., Nyirinkwaya, Cyanzayire, Muhumuza and Karimunda, J.) December 10, 2021] Civil procedure – Immovable property – Claim for recovering the property sold by the person who is not the owner - Contract of sale – In order for the owner of the property to claim for the recovery of the property sold by the person who is not the owner, it is not necessary to first request for the cancellation of the contract of sale. Civil procedure – Immovable property – Source of immovable property – The person accused of selling someone else’s property could not base only on having in his possession property titles to claim property ownership without proving how he got such property. Contract law – Sale of someone else's property- Effects of selling someone else's property - The buyer deprived of what he/she bought, is given back by the seller the equivalent value on the same day of the deprivation, which does not prevent him/her from claiming from the seller the damages for not fulfilling his/her obligations to guarantee that he/she will not be prejudiced in rights he/she had on the property he/she bought or claim that the real owner of the property, who recovers it, pay the value of the assets added by the previous possessor. Civil procedure – Immovable property – Contract of sale – Sale of

co-owned property by one of the co-owners – When the seller does not deny the contract of sale and admits to having sold the property being aware that it is co-owned, the sale is valid as regards to his/her share only. Facts: Twagirayezu Albert sold the plot of land to Niyongira after showing him the land titles certifying that the plot belongs to him. After the purchase, Twagirayezu Alice, Twagirayezu Albertine, Twagirayezu Alphonsine and Twagirayezu Monique indicated that the plot belonged to the family of Twagirayezu Aloys and Icyimpaye Marie Rose, that their brother sold it without being informed, they sued to the Intermediate Court of Gasabo praying it to invalidate the purchase contract so that the property is recovered by all the heirs. The Intermediate Court found that the plaintiffs failed to provide the elements of evidence which contradict that of Twagirayezu Albert proving that the disputed property belongs to him. Twagirayezu Alice and her siblings appealed to the High Court, which also found that the appeal was without merit. They also appealed to the Court of Appeal, arguing that the lower courts did not examine the issue of the source of the property and that Twagirayezu Albert did not prove the source of the disputed property. The Court held that the appeal was not within its jurisdiction because the plaintiffs had lost both in the Intermediate Court and the

High Court for the same reasons. Twagirayezu Alice and her siblings applied for a review of the judgment on grounds of being vitiated by injustice to the Supreme Court, and the President of the Supreme Court ordered that it would be re-adjudicated. In the hearing in public, Twagirayezu Albert and Umumaranyota objected that the plaintiffs' claim should not be admitted because they did not prove the grounds for the injustice that would lead to a judgment to be reviewed and that they were not allowed to request the cancellation of the purchase agreement to which they were not parties. The Court made a decision in the bench declaring that the objection is unfounded because after the

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President of the Supreme Court has ordered that the case will be re-tried, no other objections would be raised so the case could not be tried on the merits except the objections of public order. On the second objection, the Court decided that the objection is related to the merits of the case, it could not be examined before determining whether the Court of Appeal erred by holding that the plaintiffs lost on the same reasons in the lower courts. Umumaranyota raised another objection to public order arguing that the plaintiffs do not have the capacity to request for the cancellation of the purchase agreement to which they were not parties, but the Court made a decision in the bench upholding that it should not be admitted because it was not filed as a ground of injustice and the judgments for review must be final. The hearing on the merits was resumed, the Court first examined whether Twagirayezu Alice and her siblings have the capacity to request the invalidation of the purchase contract made between Twagirayezu Albert and Niyongira. In this regard, the plaintiffs aver that the sale contract should be invalidated because Twagirayezu Albert himself admitted to having sold someone else's property. They also state that, although the parties to the contract are the ones who are allowed to request for its cancellation, such principle has an exception stating that nothing can prevent

the owner of the property from claiming it against the person who possesses it requesting for the cancellation of the contract of sale that the present owner concluded. Umumaranyota and Twagirayezu Albert state that the cancellation of the contract is requested by parties to it, so this ground should not be considered because there is no proof of which the plaintiffs rely on to claim that the property belongs to the heirs of Icyimpaye Marie Rose and that they did nothing to invalidate the authentic deeds issued by competent authorities certifying that the disputed land belongs to him. Also, the agreement could not be invalidated because it was made in accordance with the law, and both contracting parties do not challenge it. On the issue of determining whether Twagirayezu Albert sold the property co-owned with other heirs of Twagirayezu Aloys and Icyimpaye without their consent and its effects, the plaintiffs state that they have produced to the lower courts elements of evidence to prove that the disputed land belonged to Kavamahanga, and it was later bought by Icyimpaye, the wife of Twagirayezu Aloys, who are their parents, and such land should therefore be in their possession as their heirs. Umumaranyota submits that she owned the disputed property from the purchase made by her husband Niyongira and that it happened following the presentation to her of the documents proving

that the property belongs to Twagirayezu Albert. She also adds that the purchase agreement dated 01/11/1984 relied on by the Plaintiffs should not be considered because it is written that the buyer is Kimpaye Marie Rose, yet they state that their mother's name is Icyimpaye Marie Rose. In the pre-trial conference, Twagirayezu Albert admitted to having sold the land he co-owned with his sisters and agreed to return the money he received, and he did this with the intention to steal the disputed property from Umumaranyota Agnès. He stated that returning the money was not due to the fact that he had sold someone else's property, rather, he wanted to recover his property. With regard to the issue of determining the effects resulting from the fact that the property that was sold was co-owned by the heirs of Twagirayezu Aloys and Icyimpaye, the Plaintiff state that, in case the Court finds that Twagirayezu Albert sold the co-owned property, Umumaranyota will have to return the property to its real owners and claim from the seller for the actual value of

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the property based on the valuation report included in the file, especially since the seller agrees to return the money he received. Umumaranyota states that, though she has not been able to exploit the land after her husband's death so that until now she has not built anything and nothing has changed on its surface, this does not prevent the property from increasing in value, so if this instant Court finds that the property should be returned in the possession of the Plaintiffs, Twagirayezu Albert would be ordered to return the actual value of the property to her. Held:1. For the owner of the property to return the property sold by the person who is not the owner, it is not necessary to first request for the cancellation of the purchase contract to which he/she was not a party. Regarding this case, it is the right of Twagirayezu Alice and her siblings to request the recovery of the property to which they are entitled as they think and which is possessed by Umumaranyota Agnès.

2. The person accused of selling someone else's property could not base only on possessing the property titles to claim property ownership without proving how he got such property; therefore, in case Twagirayezu Albert fails to prove how the disputed property was dispossessed from his mother Icyimpaye Marie Rose, who was the owner and became his personal property, it should be construed as he co-owned such property with other heirs, and that he sold their share on that property without their consent.

3. The buyer deprived of what he/she bought, is given back by the seller the equivalent value on the same day of the deprivation, which does not prevent him/her from requesting from the seller the damages for not fulfilling his/her obligations to guarantee that he/she will not be prejudiced in rights he/she had on the property he/she bought or claim that the real owner of the property, who recovers it, pay the value of the assets added by the previous possessor. Therefore, Umumaranyota Agnès must be paid back by Twagirayezu Albert the actual value of the disputed property as of today because she did not add anything to it.

4. When the seller does not deny the contract of sale and admits to having sold the property being aware that it is co-owned, the sale is valid as regards his/her share only; therefore, Twagirayezu Albert's share in the disputed property is equal to one fifth (1/5) of it, which shall be given to Umumaranyota Agnès, and four-fifths of it (4/5) shall be returned to Twagirayezu Alice, Twagirayezu Alphonsine, Twagirayezu Monique and Twagirayezu Albertine, and Twagirayezu Albert has to return its value (4/5) to Umumaranyota Agnès. The appeal lodged in the Court of Appeal has merit in part. The judgment rendered by the High Court is reversed in part. Statutes and statutory instruments referred to: Organic Law n° 08/2005 of 14/07/2005 determining the use and management of land in Rwanda, article 5; Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts, articles 52, 62, and 63; Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labor, and administrative procedure, article 111; Law n° 45/2011 of 25/11/2011 governing contracts, articles 64 and 113; Law n° 15/2004 of 12/06/2004 relating to evidence and its production, article 3.

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Cases referred to: Busoro Gervais and Busoro Mugunga Désiré ctrs, RS/INJUST/RC 00022/2018/SC, decided by the Supreme Court on 28/06/2019; RCAA 00045/2016/SC decided by the Supreme Court on 24/05/2019; RS/ INJUST/ RC 00011/2018/ SC decided by the Supreme Court on 09/06/2021; RCAA 0018/13/CS decided by the Supreme Court on 24/12/2014; Mukagatare Grace and Succession Bwanakeye Francois, RS/REV/INJUST/CIV 0003/14/CS, decided by the Supreme Court on 03/03/2017; Itangishaka Leonidas and Nyiramahane Rachel ctrs, RS/REV/INJUST/RC 00038/2017/CS decided by the Supreme Court on 22/06/2018; Gahire Athanase and Mukarushakiro Gloriose ctrs, decided by the Supreme Court on 12/11/2021; RS/INJUST/RC 00008/2019/SC decided by Supreme Court on 12/11/2021; Rwanda Revenue Authority and SECAM Ltd, RCOMAA 0051/14/CS decided by the Supreme Court on 04/12/2015; Bank of Kigali Ltd and Mulisa Kana Martin, RCOMAA 0038/16/CS-RCOMAA 0033/2016/SC decided by the Supreme Court on 21/4/2017; Rwanda Revenue Authority and SODAR Ltd, RCOMAA, 0048/16/CS decided by the Supreme Court on 19/05/2017; Road Solution Pavement Products and MAILCO Ltd, RS/INJUST/RCOM 00002/2020/SC decided by the Supreme Court on 25/09/2020; Rwanda Revenue Authority and SODAR Ltd, RCOMAA 0048/16/CS decided by the Supreme Court on 19/05/2017. Authors quoted: Douglas R. Richmond, “Unoriginal sin: The Problem of Judicial Plagiarism”, (2014)

Arizona State Law Journal 177 at 179; Serge Guinchard (sous la dir.) Droit et pratique de la procédure civile, Dalloz, Paris, 2014, p.1191. Judgment I. BACKGROUND OF THE CASE [1] This case was initiated in the Intermediate Court of Gasabo, Twagirayezu Alice, Twagirayezu Albertine, Twagirayezu Alphonsine and Twagirayezu Monique, all suing their brother Twagirayezu Albert for selling the family plot registered on UPI 1/02/10/03/4370, without being informed, and they request that the purchase agreement of 22/02/2012, made with

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the late Niyongira Jean Claude, who was the husband of Umumaranyota Agnès, be invalidated, and that the latter return back the disputed property. [2] In the judgment RC 00038/2017/TGI/GSBO rendered on 27/07/2018, the Intermediate Court of Gasabo found that Twagirayezu Albert sold the disputed property with an authentic deed in his names, the property titles issued by local authorities, an deed plan as well as the tax receipt, all proving that the plot number 4370 belongs to him, and it was in the finding of the Court that the elements of evidence on which the plaintiffs rely to state that the disputed plot belongs to the family, were issued in 2014 while the property was sold in 2012, and their statement that there are witnesses who testify that the property belongs to their parents, should not be considered because those witnesses were not presented, and even though they were presented, they could not contradict the evidence produced by Twagirayezu Albert, and the very Court concluded that, even though Twagirayezu Albert did not prove the source of the disputed property, the elements of evidence he produced before the Court were not challenged and all prove that the property belonged to him. The Court ordered that the purchase agreement dated 02/22/2012 remains valid because it was made in accordance with the law. [3] Twagirayezu Alice, Twagirayezu Albertine, Twagirayezu

Alphonsine, and Twagirayezu Monique appealed to the High Court alleging that Twagirayezu Albert took advantage of their absence in Rwanda, and appropriated to himself the family property, hence registering it under his names, and immediately sold it, that had the Court investigated and examined the elements of evidence presented before it, it should have noticed that Twagirayezu Albert failed to indicate the source of the property he appropriated to himself and sold. [4] In the judgment RCA 00291/2018/HC/KIG rendered on 31/01/2019, the High Court found that by the time Niyongira Jean Claude bought the property, Twagirayezu Albert managed to prove that the property belonged to him and that it was within his capacity to sell it, therefore, the fact that the heirs of Twagirayezu Aloys and Icyimpaye Marie Rose fail to produce the elements of evidence proving that the property belongs to them, it is a confirmation that the property sold by Twagirayezu Albert belonged to him, and the very Court thus sustained the ruling of the case RC 00038/2017/TGI/GSBO decided by the Intermediate Court of Gasabo on 07/27/2018, hence ordering the plaintiffs to pay to Umumaranyota Agnès 250,000 Frw for counsel fee and 100,000 Frw for the procedural fee. [5] Twagirayezu Alice, Twagirayezu Albertine, Twagirayezu Alphonsine and Twagirayezu Monique appealed to the Court of Appeal alleging that the High

Court never bothered to examine the origin of the sold property and the statement issued by Twagirayezu Albert admitting that he sold family's property without prior authorization, that the sale agreement was concluded on 01/11/1984 between Icyimpaye Marie Rose and Kavamahanga, and the testimonies of the witnesses supporting such statement were ignored, while they could help identify the origin of the property. [6] Umumaranyota Agnès raised the objection of inadmissibility against the second appeal based on the ground that the subject matter is the cancellation of the purchase contract of the plot of land bought for 10,000,000 Frw so that the value of the subject matter does not reach 75,000,000 Frw provided by article 52 of Law n°30/2018 of 02/06/2018 determining the jurisdiction of

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courts. She also objected that the grounds for which the plaintiffs lost the case in the Intermediate Court of Gasabo are the same as those in the High Court. [7] In the judgment RCAA 00020/2019/CA rendered on 26/06/2020, the Court of Appeal found that although the property valuers confirmed that the plot UPI 1/02/10/03/4370 is worth 92,825,000 Frw, the issues analysed by the High Court and the Intermediate Court of Gasabo, are related to determining whether the sold property belongs to Twagirayezu Albert as an individual or whether it belongs to the family of Twagirayezu Aloys and Icyimpaye Marie Rose, and the High Court found that both courts took the decision based on the same reasons, hence declaring that the appeal does not fall within its jurisdiction, and the appellants were ordered to jointly pay to Umumaranyota Agnès 500,000 Frw for counsel and procedural fee. [8] Twagirayezu Alice, Twagirayezu Albertine, Twagirayezu Alphonsine and Twagirayezu Monique wrote to the President of the Supreme Court requesting that the judgment RCAA 00020/2019/CA rendered by the Court of Appeal on 26/06/2020 be reviewed on grounds of being vitiated by injustice. In decision number 058/CJ/2020 of 19/11/2020, the President of the Supreme Court, after reviewing the request, ordered that it be sent to the Registry of the Supreme Court for being reheard. [9] The hearing in public was held on

02/06/2021, Twagirayezu Alice, Twagirayezu Albertine, Twagirayezu Alphonsine and Twagirayezu Monique being represented by Counsel Nshuti Salim and Counsel Kazeneza Théophile, Twagirayezu Albert represented by Counsel Ngezahayo Bernard, while Umumaranyota Agnès was represented by Counsel Nsengiyumva Viateur. [10] The Court first examined the objections raised by the legal counsel of Twagirayezu Albert and Umumaranyota Agnès, who stated that the application should not be admitted because the plaintiffs did not prove the grounds for the injustice that would lead to the review of the judgment and that they were not allowed to request the cancellation of the purchase agreement to which they were not parties. [11] Regarding the objection that no grounds for injustice have been presented for the judgment to be reviewed, the Court made a decision in the bench, based on the provisions of paragraph one1 of article 62, and article 632 of Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts and their analysis made in the case of Busoro Gervais vs Busoro Mugunga Désiré and others, that in case the President of the Supreme Court confirms that the case will be reheard, no other objections are raised to prevent the case from being tried on the merits except the objections of public order,3 and the Court thus concluded that the objection is not admitted. 1 Where, upon considering

a report on the judgment vitiated by the injustice that is submitted to him/her, the President of the Supreme Court decides that the case be re-adjudicated, he/she forwards the file to the Chief Registrar of the Supreme Court for him/her to set the date for the hearing thereof …... 2 When the Supreme Court or any other court designated by the President of the Supreme Court receives an application for review of a judgment on grounds of being vitiated by injustice, it examines the merits of the case anew and in the presence of all parties. 3 Judgment RS/INJUST/RC 00022/2018/SC between Busoro Gervais and Busoro Mugunga Désiré ctrs, decided by Supreme Court on 28/06/2019, paragraph 18.

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[12] As for the objection that the plaintiffs are not allowed to apply for the cancellation of the purchase agreement to which they were not parties, the Court finds that, even if this argument was raised as an objection, it is related to the merits of the case, and it should not be examined before determining whether the Court of Appeal erred in declaring that the plaintiffs lost on the same reasons both in the Intermediate Court of Gasabo and in the High Court. [13] After deciding that the objection raised by the lawyers of Twagirayezu Albert and Umumaranyota Agnès was rejected, the Court examined whether the second appeal should have been admitted by the Court of Appeal. In the interlocutory judgment rendered on 25/06/2021, the Court found that Twagirayezu Alice and her siblings did not lose the case on the same reasons both in the Intermediate Court of Gasabo and the High Court, hence upholding that their appeal would have been admitted by the Court of Appeal. [14] The hearing on the merits was scheduled on 09/08/2021, and on that date, the Court found that Twagirayezu Albert had revoked the mandate conferred upon Counsel Ngezahayo Bernard and no other lawyer was sought, and he was fined for delaying the case, the trial was thus adjourned to 11/15/2021. [15] On that day, the hearing was held in public, Twagirayezu Alice, Twagirayezu Albertine, Twagirayezu Alphonsine,

Twagirayezu Monique and Umumaranyota Agnès being represented as before, but Twagirayezu Albert did neither appear nor did he seek a lawyer to represent him, and the Court ruled that, as he was concerned, the case was heard in absentia. [16] At the beginning of the hearing, Counsel Nsengiyumva Viateur, representing Umumaranyota Agnès, raised another objection of public order. He elucidated that the plaintiffs do not have the capacity to request for the cancellation of the contract of sale to which they were not parties, therefore, based on the provisions of article 129 of the Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, and article 116 of the Law n° 45/2011 of 25/11/2011 governing contracts, and on the position adopted by the instant Court in paragraph 35 of the judgment of Mukaruhanga Alexia v. Nyirahabimana Emertha and Kold Hansen Jesper4, the claim of Twagirayezu Albertine and her siblings would not have been admitted by the lower courts, the same should apply in this instance. [17] Counsel Nshuti Salim and Counsel Kazeneza Théophile representing Twagirayezu Albertine and her siblings, avered that the objection raised by Counsel Nsengiyumva Viateur for the first time in the Supreme Court should not be accepted for examination unless the alleged injustice is based on it, especially that the issues relating to objections

had been closed, and that the very Court should decide that the case should resume on the merits. They explain that if such an objection is admitted, the Court should find it unfounded because, even though only parties to the contract are allowed to request for its cancellation, this principle has an exception stating that nothing can prevent the owner of the property from claiming it from the person who possesses it. [18] The Court made the decision on the bench, and found that the objection raised by Counsel Nsengiyumva Viateur should not be accepted because it was not raised as a ground for injustice, due to the fact that the judgments for review must be final, with the litigants, who are also the same in the judgment for review, and the inadmissibility objection is accepted only if the 4 See judgment RCAA 00045/2016/decided by Supreme Court on 24/05/2019.

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injustice is based on it, and this is the position adopted in various cases including the case of Nyirahabimana Umwali Roselyne v. Habimana Jean Léo Pasteur and his colleagues,5 and the instant Court upholds that the hearing continues by examining the issues on the case merits. II. ANALYSIS OF LEGAL ISSUES 1. Whether Twagirayezu Alice, Twagirayezu Albertine, Twagirayezu Alphonsine and Twagirayezu Monique have the capacity to request for invalidation of the sale agreement concluded between Twagirayezu Albert and Niyongira Jean Claude [19] Counsel Nshuti Salim and Counsel Kazeneza Théophile assisting the plaintiffs argue that the sale agreement between Twagirayezu Albert and Niyongira Jean Claude should be invalidated because Twagirayezu Albert himself admitted to having sold someone else's property. They say that although only parties to the contract are allowed to request its cancellation, this principle does not prevent the owner of the property from claiming it against the person who possesses it, requesting the cancellation of the contract by which the possessor bought it. [20] Counsel Nsengiyumva Viateur, assisting Umumaranyota Agnès, avers that based on the provisions of article 113 of Law n° 45/2011 of 25/11/2011 governing contracts and on the position set by the instant Court in the case of Mukaruhanga Alexia v. Nyirahabimana Emertha and Kold Hansen Jesper, where it was

held that the cancellation of the contract is requested by the parties, therefore, this ground should not have been accepted. He further explains that since there is no evidence presented by the plaintiffs to prove that the property belongs to the heirs of Icyimpaye Marie Rose, and they have done nothing to invalidate the titles issued by the competent authorities proving that the disputed land belongs to Umumaranyota Agnès, he thus requests this Court to uphold the previous court's rulings where it was held that the contract of sale between Niyongira Jean Claude and Twagirayezu Albert is valid. [21] In the pre-trial conference, Counsel Ngezahayo Bernard assisting Twagirayezu Albert stated that he found that there is no ground for invalidating the sale agreement concluded between Twagirayezu Albert and Niyongira Jean Claude because it was done in accordance with the law and both parties entered into it without any objection.

DETERMINATION OF THE COURT [22] Regarding the request of Twagirayezu Alice and her siblings for cancellation of the sale agreement concluded between Twagirayezu Albert and Niyongira Jean Claude, article 64 of Law n° 45/2011 of 25/11/2011 governing contracts stipulates that “contracts made in accordance with 5 See the decision taken in bench in judgment n° RS/ INJUST/ RC 00011/2018/ SC on 09/06/2021.

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the law shall be binding between parties. They may only be revoked at the consent of the parties or for reasons based on law”. As for the first paragraph of article 113, of that Law stipulates that “contracts shall have effect only on contracting parties. They shall not cause any prejudice to a third party and shall only benefit to him/her in case of provisions in favour of a third party”. [23] The foregoing articles have been analyzed by the instant Court in detail in various cases, but especially in the case of Mukaruhanga Alexia v. Nyirahabimana Emertha and Kold Hansen Jesper, and found that in case the issue under examination arises from the contract of purchase of immovable property, the owner of the property has the right to claim it against the possessor, without asking for the annulation of the contract of sale between the buyer and the seller. It explained that what makes the purchase contract null and void is when it is requested by the buyer to be claimed by the real owner who wants to return his/her property because the seller cannot file such a claim and yet he/she has the responsibility to guarantee the buyer to own the property without problems, and the real owner cannot request for the cancellation of the purchase agreement to which he/she was not a party.6 [24] In the premises, the Court finds unfounded the statements of Counsel Nshuti Salim that there is an

exception to the provisions of articles 64 and the first paragraph of article 113, of Law n° 45/2011 of 25/11/2011 governing contracts in such a way that a third party would request its cancellation. [25] The Court, therefore, finds baseless the arguments of the counsels for Twagirayezu Alice, Twagirayezu Alphonsine, Twagirayezu Monique and Twagirayezu Albertine that in order to be able to claim for their property sold by Twagirayezu Albert, it is necessary to first invalidate the purchase agreement between him and Niyongira Jean Claude because in order for the owner of the property to claim for the recovery of his/her property bought by the person who is not the owner, it is not necessary to first apply for the cancellation of the purchase contract.

2. Whether Twagirayezu Albert sold the property co-owned with the other heirs of Twagirayezu Aloys and Icyimpaye Marie Rose without their consent and the effects thereof [26] Counsel Nshuti Salim and Counsel Kazeneza Théophile assisting Twagirayezu Alice and her siblings, state that the disputed plot of land belonged to Kavamahanga, and was later bought by Icyimpaye Marie Rose, the wife of Twagirayezu Aloys, who are the parents of Twagirayezu Albert, Twagirayezu Alice, Twagirayezu Monique, Twagirayezu Alphonsine and Twagirayezu Albertine. They aver that the sale agreement dated 01/11/1984, the certificate of inheritance in the name of Icyimpaye Marie Rose dated 13/08/2014, the document issued by Twagirayezu Albert dated 15/11/2014 indicating that he sold the property he co-owned with his sisters without their consent, as well as the statements of the witnesses testifying that the property should belong to the heirs of Icyimpaye Marie Rose and Twagirayezu Aloys. [27] They state that the aforementioned elements of evidence were produced before the Courts, and instead of considering them, such courts based their decisions on the fact that the disputed 6 See judgment RCAA 00045/2016/SC decided by Supreme Court on 24/05/2019, from paragraphs 25 to 34.

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property is registered to Twagirayezu Albert, hence disregarding the position set by the Supreme Court in the case of Harerimana Emmanuel v. Sebukayire Tharcisse when analysing the provisions of article 10 of Law n° 43/2013 of 16/06/2013 governing land in Rwanda where it was held that the defendant does not just claim that the land is registered in his/her name without first proving its source. [28] Counsel Nsengiyumva Viateur assisting Umumaranyota Agnès, argues that the latter acquired the disputed property on the purchase made by her husband Niyongira Jean Claude and that it happened upon the presentation of documents proving that the property belongs to Twagirayezu Albert. He adds that the purchase agreement dated 01/11/1984 raised by the plaintiffs should not be considered because it states that the buyer is Kimpaye Marie Rose, yet the plaintiffs say that their mother's names are Icyimpaye Marie Rose, which is not clear how Icyimpaye Marie Rose who was literate because she was a nurse, would sign a purchase agreement in a name that was not hers, and changed her signatures. He found that, before confirming that the agreement is truthful, there should be a verification of the signature. [29] He further submits that Twagirayezu Albert's statement of 15/11/2014 should not be considered because his lawyer averred during the pre-trial conference that when he wrote it, it was a

plan with his sisters to steal Niyongira Jean Claude's property, but that after he realised that he died, he withdrew the plan. He explains that another factor that should make the document invalid is that it was not sent through the Rwandan Embassy in France. He concludes that the disputed property would not have belonged to Icyimpaye Marie Rose since 1984, because if it was so, she would have registered it in MINITRAPE, therefore, as long as the plaintiffs do not present the form filled in by MINITRAPE to prove that the disputed land belonged to Icyimyape Marie Rose, he prays the instant Court to uphold that there was no injustice in the judgments under review because Niyongira Jean Claude bought it from the owner of the property. [30] During the pre-trial conference, Counsel Ngezahayo Bernard assisting Twagirayezu Albert stated that the fact that in a statement dated 15/11/2014, Twagirayezu Albert admitted to having sold the land he co-owned with his sisters and even agreed to return the money he received as part of an attempt to steal Umumaranyota Agnès. He stated that returning the money was not due to the fact that he had sold someone else's property, but he rather wanted to return his property. He submitted that the statement dated 15/11/2014 was issued by Twagirayezu Albert after being deceived by his sisters who wanted the purchase agreement to be canceled and sell it

again in order to get more money out of that land. He explained that in 2009, Twagirayezu Albert's sister by the name of Twagirayezu Marie Louise, sold the land for 5,000,000 Frw, then in 2012, they agreed to invalidate the purchase contract and refund the buyer because they had found a new buyer who was ready to offer 10,000,000 Frw. He indicated that when Twagirayezu Albert realised that Niyongira Jean Claude was dead, he felt remorseful and decided not to wrong against the widow and the orphans, and he decided to reveal the truth.

DETERMINATION OF THE COURT [31] Article 5 of the Organic Law n° 08/2005 of 14/07/2005 determining the use and management of land in Rwanda that was into force when Niyongira Jean Claude bought the

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disputed land with Twagirayezu Albert provided that" any person or association with legal personality that owns land either through custom or who acquired it from competent authorities or who purchased it are allowed to own it on long term lease in conformity with provisions of this organic law". [32] Paragraph one of article 3, of Law n° 15/2004 of 12/06/2004 relating to evidence and its production reads that " Each party has the burden of proving their allegations”. [33] The case file indicates that the evidence that Umumaranyota Agnès is basing on to prove that her husband Niyongira Jean Claude bought from the owner of the property is as follows: - Authentic deed issued by Gasabo District on 18/01/2012 indicating that the property consisting of a plot of land measuring 52m x 103m, located in Kigali – Kagugu, belongs to Twagirayezu Albert; - The certificate of inheritance issued by Kinyinya Sector on 20/01/2012 proving that the property with an area of 103 m x 52 m is the inherited property of Twagirayezu Albert; - A deed plan was established on 31/01/2012 indicating that plot number 4370 belongs to Twagirayezu Albert; - Property tax receipt for plot number 4370 dated 16/02/2012 indicating that Twagirayezu Albert paid the property tax. [34] The Court finds that Twagirayezu Alice and her siblings lost the case in the previous courts due to the fact that the certificate of

inheritance of Icyimpaye Marie Rose dated 13/08/2014 and the document issued by Twagirayezu Albert dated 15/11/2014 proving that he sold the family property without the consent of his siblings, was found after the property was sold, and the courts concluded that it was not necessary for Twagirayezu Albert to prove the origin of the property registered under his names, with elements of evidence thereof. However, the position set by the instant Court in various cases, including the one of Harerimana Emmanuel v. Sebukayire Tharcisse,7 when analysing article 5 of the above-mentioned Organic Law no 08/2005 of 14/07/2005, that the legislator has provided the procedure in which a person gets an immovable property, the person accused of selling someone else's property could not base only on possessing the property titles to claim property ownership without proving how he owned such property. [35] The Court finds that the certificate of inheritance of Icyimpaye Marie Rose dated 13/08/2014 is based on the purchase agreement dated 01/11/1984 concluded between Icyimpaye Marie Rose and Kavamahanga, and these elements of evidence and the document established by Twagirayezu Albert on 15/11/2014 and his Counsel's submissions during the pre-trial conference, all prove that the disputed property was bought by Icyimpaye Marie Rose, so it is 7 See judgment RCAA 0018/13/CS decided by Supreme Court

on 24/12/2014, paragraph 21. This position was also upheld in the Judgment RS/REV/INJUST/CIV 0003/14/CS between Mukagatare Grace and Succession Bwanakeye François, decided by the Supreme Court on 03/03/2017 and in Judgment RS/REV/INJUST/RC 00038/2017/CS between Itangishaka Léonidas and Nyiramahane Rachel et Al. decided by the Supreme Court on 22/06/2018, paragraph 19. See also judgment Gahire Athanase against Mukarushakiro Gloriose and her colleagues, decided by the Supreme Court on 12/11/2021, paragraph 67.

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still co-owned by her heirs. The fact that the purchase agreement dated 01/11/1984 contains the name Kimpaye instead of Icyimpaye or the fact that Counsel Ngezahayo Bernard submitted in the pre-trial conference that the statement of Twagirayezu Albert issued on 15/11/2014 consists of machination, they cannot lead to not consider all contents of the foregoing documents, as submitted by Counsel Nsengiyumva Viateur, because there is no dispute between those who made the agreement or between the heirs of Icyimpaye Marie Rose as regard to the spelling of their mother's name, where they wrote K instead of ICY, and there is no evidence that Twagirayezu Albert has reversed his statement of 15/11/2014. [36] The Court finds that, although in the purchase agreement, Twagirayezu Albert stated: I, Twagirayezu Albert, sell my plot of land located in Kagugu Cell, with number 4370..., based on the deed plan, parcel number confirmation and authentic deed as indicated by that agreement, he failed to prove how the land was transferred from his mother Icyimpaye Marie Rose to him, such as because he inherited it from her, or bought it or any other way that would make it being transferred from the owner who had bought it so as to become his personal property as per article 5 of the aforementioned Organic Law no 08/2005 of 14/07/2005 that was into force at the time of the purchase, which means that

having in his possession the land titles was not a sufficient proof that the disputed land belongs to him while he failed to prove the source of the property evidenced by those documents. [37] In the premises, it is in the finding of the Court that the plot of land registered on UPI 1/02/10/03/4370 located in Gasabo District, Kinyinya Sector, Kagugu Cell, Rukingu Village belongs to Icyimpaye Marie Rose, from the time she died on 21/11/2000 as evidenced by the death deed of 02/03/2020, the property was inherited by her heirs, which means that by the time Twagirayezu Albert sold it on 22/02/2012, he sold the property he co-owned with other heirs without their consent.

3. Determine the effects of the fact that the property sold was co-owned with the heirs of Twagirayezu Aloys and Icyimpaye Marie Rose [38] Counsel Nshuti Salim and Counsel Kazeneza Théophile assisting the plaintiffs state that in case the Court finds that Twagirayezu Albert sold the co-owned property, Umumaranyota Agnès should return the property to the owner and pursue Twagirayezu Albert for the actual value of the property based on the valuation report included in the case file especially that he also agrees to pay back the money he received. [39] Counsel Nsengiyumva Viateur avers that Umumaranyota Agnès was not able to exploit the land after the death of her husband, and until now nothing has neither been built nor changed on its surface. He submits that this does not prevent the property from increasing in value, so in case the instant Court finds that the property should be returned to the heirs of Twagirayezu Aloys and Icyimpaye Marie Rose, Twagirayezu Albert should be ordered to pay back to Umumaranyota Agnès the actual value of the property amounting to 92,825,000 Frw. [40] In the pre-trial conference, Counsel Ngezahayo Bernard assisting Twagirayezu Albert submits that the Court should rely on the evidence presented, and award the disputed property to Umumaranyota Agnès because her husband bought it in accordance with the law.

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DETERMINATION OF THE COURT [41] Regarding the effects resulting from the fact that the buyer returns to the owner the property on which nothing was added, the laws of Rwanda do not provide anything on that issue, however, the jurisdictions of other countries emphasize that in case there has been an increase of the value of the sold property at the time the buyer is going to be deprived of it, regardless of what the offeree did, the seller must pay the additional value exceeding on the one such property had at the time of the sale. This has been upheld by the Court of Cassation in France in various cases where it has been stated that the sellers must return to the deprived buyers the value of the purchase on the date of purchase and that the value of the property itself should be based on the value of the property without the involvement of the buyer.8 [42] The Court finds that the aforementioned statements imply that the buyer who is deprived of what he/she bought is returned by the seller the actual value of the property on the day of its deprivation, that is, on the day the decision of its deprivation was made; this does not prevent him/her from asking the seller for compensation for not fulfilling his/her obligation to ensure that he/she is not disturbed in the rights he/she had on the property he/she bought or to request that the real owner of the property, who regains it,

pays the value added by the possessor. As far as this case is concerned, it is clear that Umumaranyota Agnès did not add anything to the property, so she must be returned its actual value. [43] The Court finds that the case file contains the valuation report made upon the request of Twagirayezu Alice and her siblings, made by Eng. Dushimimana David on 18/04/2019. He points out that the value per m2 is 21,000 Frw, so for the total area of 3,652 m2, the disputed land has a value of 76,692,000 Frw. However, he was wrong on the area because the land title indicates that it is 3,713 m2, so its value would be 21,000 Frw/m2 x 3,713 m2 = 77,973,000 Frw. The case file also contains the valuation report made by Eng. Bazine Jean Yves on 02/06/2020 upon the request of Umumaranyota Agnès. It appears that the value per m2 is 25,000 Frw, so for an area of 3,713 m2, the total land value is 92,825,000 Frw. [44] The Court finds that after these valuation reports, on 01/12/2021, the Institute of Real Property Valuers in Rwanda (IRPV) published in the Official Gazette, Land Values in Rwanda in the year 2021, in relation to properties located in Gasabo District, Kinyinya Sector, Kagugu Cell, Rukingu Village where the plot number UPI 1/02/10/03/4370 is located, the journal review states that the average price per m2 of the land intended for residential use is 20,769 Frw, so in relation to this case,

this basic price is the one to base on because it is clear to this instant Court that the valuer's reports were made without the request of the Court and they gave a very different value, yet the report was made in very close periods. 8 … si la chose vendue se trouve avoir augmenté de prix à l’époque de l’éviction, indépendement m me ȇ du fait de l’acquéreur, le vendeur est tenu de lui payer ce qu’elle vaut au dessus du prix de la vente..., Reba Cour de Cassation, Chambre civile 3, du 16 janvier 1991. “…les vendeurs sont tenus d'indemniser leurs acquéreurs de la valeur du bien dont ils sont évincés à la date de la décision d'éviction…” Reba Cour de cassation, Chambre civile 3, 07 juillet 2010. “Mais attendu qu'ayant exactement retenu qu'en application de l'article 1633 du code civil, qui vise l’augmentation du prix, indépendamment même du fait de l’acquéreur, M. B... pouvait réclamer à ses vendeurs l'augmentation de la valeur de la parcelle, la cour d'appel, qui a ordonné une expertise afin de déterminer si le prix avait augmenté entre la vente et la décision constatant l'éviction, a, par ce seul motif, légalement justifié sa décision…” Reba Cour de cassation, civile, Chambre civile 3, 27 octobre 2016.

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[45] The Court therefore finds that the area of 3,713 m2, has a value of 77,117,297 Frw, which should be considered as the basic actual value of the disputed land. [46] Regarding the real value that must be returned to the buyer in good faith in the case of the sale of co-owned property, this instant Court explained it again in the case of Gahire Athanase against Mukarushako Gloriose and his colleagues, where it stated that in case the seller does not deny the purchase agreement and accepts that he has sold the property in full awareness that it was co-owned, the sale is valid only in respect of the part which only constitutes his share9. This means that the purchase agreement made by Twagirayezu Albert is valid for the part which only constitutes his share on the disputed property, that is, one-fifth (1/5) of it measuring 742.6 m2 with a value of 15,423,459 Frw, which is the property Umumaranyota Agnès must keep after letting off the 4/5 remaining on the disputed land. [47] The Court, therefore, finds that in case it is found that Twagirayezu Albert sold the disputed property without the consent of his siblings Twagirayezu Alice, Twagirayezu Alphonsine, Twagirayezu Monique and Twagirayezu Albertine, these siblings should regain their share on the property equal to 4/5 of it, and he should return to Umumaranyota Agnès the value of the 4/5 of the deprived one worth 77,117,297 Frw- 15,423,459 Frw = 61,693,838 Frw. This also means that the land title registered to Niyongira Jean Claude and Umumaranyota Agnès must be invalidated, 1/5 of the land registered on UPI 1/02/10/03/4370 shall be registered to Umumaranyota Agnès, and 4/5 shall be registered to Twagirayezu Alice, Twagirayezu Alphonsine, Twagirayezu Monique, and Twagirayezu Albertine.

4. Whether claimed damages are founded [48] Counsel Nshuti Salim assisting Twagirayezu Alice and her siblings, avers that the plaintiffs should be awarded 5,000,000 Frw for counsel fee for three lawyers who assisted them in this instant case and 700,000 Frw of the procedural fee since the start of this case, and they should be reimbursed the amount paid to Umumaranyota Agnès as ordered by the previous courts. [49] Counsel Nsengiyumva Viateur argues that Umumaranyota Agnès is the one who has been dragged in continuous unnecessary lawsuits since 2014, and is asking for damages amounting to 5,000,000 Frw for that purpose and 1,000.000Frw for Counsel fee. [50] In the pre-trial conference, Counsel Ngezahayo Bernard assisting Twagirayezu Albert argues that the plaintiffs should pay him 3,000,000 Frw for counsel and procedural fees for being dragged into unnecessary lawsuits. [51] Counsel Nshuti Salim avers that Umumaranyota Agnès does not deserve any damages because she also knows well that the property was fraudulently bought by her husband due to the fact that he was not careful enough to seek sufficient information about the disputed property before the purchase and nor did he purchase it before the Land Notary, therefore she must be liable for the effects of such mistakes. 9 See judgment RS/INJUST/RC 00008/2019/SC decided by Supreme Court on 12/11/2021, paragraphs 82-84.

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DETERMINATION OF THE COURT [52] Article 111 of Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure reads that “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 the same time with the principal claim. It can also be admitted and adjudicated even if the principal claim has not been admitted”. [53] The Court finds that the counsel and procedural fees claimed by Twagirayezu Alice and her colleagues should be awarded because it was necessary to institute the case and seek lawyers to assist them. However, since they failed to prove the use of 5,000,000 Frw for counsel fee and 700,000 Frw for procedural fee within this instant case, in the sole discretion of the Court, they are awarded 500,000 Frw for counsel fee and 300,000 Frw for procedural fee, all totaling to 800,000 Frw, to be paid by Twagirayezu Albert. [54] The Court also finds that as stated above, the late Niyongira Jean Claude, who was the husband of Agnès Umumaranyota, bought the disputed land in good faith, because Twagirayezu Albert sold to him the property being aware that he shared it with his siblings, so that Umumaranyota Agnès seized the courts to claim her rights, as well as seeking lawyers to assist her, so the counsel and

procedural fees she is requesting must be awarded. However, since she failed to justify the use of 5,000,000 Frw for the procedural fee and 1,000,000 Frw for the counsel fee in this instant case, in the sole discretion of the Court, she is awarded 500,000 Frw for counsel fee and 300,000 Frw for procedural fee, all totaling to 800,000 Frw, which must be paid by Twagirayezu Albert. [55] The Court also finds that the fraud committed by Twagirayezu Albert led his sisters to seize the courts to defend their rights, so in case it appears that their claim was justified from the beginning, Twagirayezu Albert is the one who should pay damages ordered by the courts to Umumaranyota Agnès, meaning 1,500,000 Frw in the Intermediate Court of Gasabo, 350,000 Frw in the High Court and 500,000 Frw in the Court of Appeal, all totaling to 2,350,000 Frw. III. DECISION OF THE COURT [56] Holds that the appeal lodged by Twagirayezu Alice, Twagirayezu Alphonsine, Twagirayezu Monique and Twagirayezu Albertine in the Court of Appeal has merit in part; [57] Declares RCA 00291/2018/HC/KIG decided by the High Court, Kigali Chamber on 31/01/2012 changed regarding to the size of land that Umumaranyota Agnès should keep on plot number UPI 1/02/ 10/03/4370; [58] Declares that the land title of the plot UPI 1/02/10/03/4370 located in Kigali City, Gasabo District, Kinyinya Sector, Kagugu Cell, Rukingu Village is invalidated, and decides that one- fifth (1/5) should be registered to Umumaranyota Agnès and four-fifths of it should be registered

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to Twagirayezu Alice, Twagirayezu Alphonsine, Twagirayezu Monique and Twagirayezu Albertine; [59] Orders Twagirayezu Albert to pay to Umumaranyota Agnès the value of four-fifths (4/5) of the plot number UPI 1/02/10/03/4370 amounting to 61,693,833 Frw; [60] Orders to Twagirayezu Albert to pay back to Twagirayezu Alice, Twagirayezu Alphonsine, Twagirayezu Monique and Twagirayezu Albertine, 2,350,000 Frw of damages charged by the previous courts and 800,000 Frw for counsel and procedural fees at this instance, all totaling to 3,150,000 Frw; [61] Orders to Twagirayezu Albert to pay Umumaranyota Agnès 800,000 Frw for counsel and procedural fees at this instance; [62] Orders to Twagirayezu Albert to pay a civil fine amounting to 200,000 Frw charged in the hearing held on 14/09/2021 for delaying the case.