UWANTEGE V. NIYONSHUTI ET AL.

# UWANTEGE V. NIYONSHUTI ET AL.

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-11-19 - Case/document no.: RCOMAA 00043/2024/CA - Collection: Court of Appeal

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UWANTEGE V. NIYONSHUTI ET AL. [Rwanda COURT OF APPEAL- RCOMAA 00043/2024/CA (Rutazana, P.J.) 19 November 2024] Commercial procedure- Summary Procedures- Calculating appeal time limit for summary procedures- Appeal time limits for summary procedures are calculated with reference to article 188 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure- the provision of the above mentioned article is the sole special guidance for calculating such appeals time limit, and its content constitutes an exception to the provisions of article 275 of the same law. Facts: Uwantege contracted a loan facility from Access Bank Rwanda Ltd, and they gave her 150,000,000 Rwf upon presentation of a certain collateral registered under UPI: 3/03/04/02/ 953 for repayment security. Uwantege failed to reimburse the loan, and the Bank petitioned the Registrar General, and sought a permission for auctioning the attached collateral. The auction permission was granted and the collateral was bought by one Nizeyimana Venant. Uwantege petitioned the Registrar General and pleaded for revocation of the auction, but she did not succeed. She then seized the Commercial Court and she sued Nizeyimana Iddi Ibrahim (the auctioneer), Access Bank,

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Nizeyimana Venant, and RDB, and she sought for annulment of the auction for its alleged illegality. The seized court heard the case and held that the concerned auction has been legally conducted. Uwantage was not satisfied with the ruling and she appealed the decision before the Commercial High Court. She lamented that the appealed ruling disregarded her claims about the auctioneer’s illegal procedures, and she as well requested for invalidation of the charged damages. The Commercial High Court, on its own motion, wondered whether Uwantege’s appeal was not time- barred. Parties argued on the motion, and the Court found that Uwantege’s appeal was filed late, and it held hat her appeal has no justification. Uwantege appealed the above ruling before the Court of Appeal; and she complained that the Commercial High Court held that her appeal was time- barred, lamenting that the court held it so in violation of article 275 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure which states that for delays that are calculated in terms of days, the event day must not be included, and she prayed for redress of the previous court’s errors. For the respondents, they argued that Uwantege’s appeal is pointless as she cannot pinpoint the defects of the appealed ruling since she cannot rebut the Commercial High Court’s stance in the computation of urgent claims appeals time-limits, whereby the court held that such appeals deadlines are calculated with reference to article

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188 (2) of the Law n0 22/2018 of 29/04/2018, while article 257 of the same law is only meant for ordinary appeals. Held: Appeal time limits for summary procedures are calculated with reference to article 188 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure. The provision of the above mentioned article is the sole special guidance for calculating such appeals time limit, and its content constitutes an exception to the provisions of article 275 of the same law. The appeal lacks merit. Statutes referred to: Law No 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, articles 188, 260, and 274 Cases referred to: SUPROMETAL Ltd v BANQUE POPULAIRE DU RWANDA Ltd and RDB’s REGISTRAR GENERAL RCOMAA 00031/2020/ CA, rendered by the Court of Appeal on the 25/08/2020. Prosecution v Kantesi Odette et.al, RPA 00020/2024/CA rendered by the Court of Appeal on the 27/09/2024. Judgment

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I. BACKGROUND OF THE CASE

In the year 2021, Uwantege Louise contracted a loan facility from Access Bank Rwanda Ltd, and the Bank gave her 150,000,000 Rwf upon presentation of a certain immovable property registered under UPI: 3/03/04/953 for collateral.

Uwantege Louise failed to reimburse the loan as per the terms of her agreement with Access Bank Rwanda Ltd, and her failure made the Bank to seek a permission for auctioning the collateral from the Registrar General. The Bank got the auction permission, and the collateral was auctioned on the 17/01/2024 by Niyonshuti Iddi Ibrahim, the auctioneer. And the collateral was bought on 188, 650,000 Rwf by Nizeyimana Venant. Following the auction, on the 23/ 01/2024, Uwantege Louise petitioned the Registrar General, and dropped a letter for revocation the auction, but her letter got no reply.

Later on, Uwantege Louise filed a claim before the Commercial Court and sued Nizeyimana Iddi Ibrahim (the auctioneer), Access Bank Rwanda Ltd, Nizeyimana Venant and Rwanda Development Board (RDB), and she requested for the annulment of the auction due to its’ alleged violation of articles 25 and 27 of the Registrar General’s regulations n0 001/2020/ORG of 12/05/2020 relating to management, lease, auction and acquisition of attached mortgages as revised to date. She based her claim on the following grounds: a fact that she never received the auctioned property valuation report, neither was she given any auction related document, a fact that

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she was not linked to the IECMS’s property auctioning window, a fact that the auction arrangement was kept secret and such a secrecy led her property into a derisory purchase price, a fact that by the auction time, the auctioneer used an obsolete valuation report, and then a fact that some of the auction procedures were conducted outside the public auction technology.

All respondents argued that the auction was legally conducted and that it cannot be revoked. They also requested for refund over courtroom representation fees and the incurred case related bill costs. Meanwhile, Nizeyimana Venant made a cross- appeal, and thereby argued that he has not yet received a house he bought under the public auction, and he lamented that Uwantege Louise kept dismounting some of the house’s high value features, and she kept replacing them with some other low quality materials. He requested for cancelling the purchase and be refunded the cost, and claimed for related damage-compensations. RDB did not appear for the hearing, but since they had been lawfully summoned, the case was heard in their absence.

On 05/06/2024, the Commercial Court heard case RCOM 00774/2024/TC and held that the above mentioned auction was legally conducted and the court backed its decision with the following reasons: a fact that Uwantege Louise had been notified of all the auction- related documents via her own son Niyo Elie, a fact that Uwantege Louise has deliberately declined a linkage into IECMS auction system when she refused to provide her email address for a proposed link. A fact that the Bank

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served Uwantege Louise with the auction notice in February 2023, and then got her served with the property valuation report in the following month, she cannot allege an obsolescence for a valuation report of less than one- year old, and of which she all along had a right to oppose.

With reference to the above provided grounds, the court stayed the contested auction and ordered Uwantege Louise to give Nizeyimana Venant and Niyonshuti Iddi Ibrahim 500,000 Rwf each for court representation costs, and ordered her to give Access Bank Rwanda 1,000,000 Rwf for Counsel fee.

On the 28/06/2024, Uwantege Louise appealed the above ruling before the Commercial High Court; she argued that for the above judgement, the court disregarded her claims about the auctioneer’s illegal procedures, and she also requested for invalidation of the charged damages. The respondents (a part from RDB who did not appear) argued that Uwantege Louise’s appeal has no justification, and each requested for damages on the incurred case related expenses and Nizeyimana Venant closs-appealed and sought moral damage compensations that are equivalent to the house features that Uwatege Louise dismounted from his house.

On the 12/07/2024, the Commercial High Court heard the appellant’s case, and all the parties, apart from RDB, were present. On its own motion, the court questioned whether the appeal by Uwantege Louise was filed in due legal time limits. Parties debated on the motion, and Counsel Komezusenge Deogratias, who represented the appellant, argued that the appeal complied

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with the provided three-days appeal deadline; while respondents were arguing that the appeal time limit was not observed. And the Court moved that the submissions on the motion will be examined together with the merit of the case.

On the 17/07/2024, the Commercial High Court heard case RCOMA 00397/2024/HCC and held that the appeal by Uwantege Louise is not admitted since it is time-barred, while the cross-appeal made by Nizeyimana Venant is as well not admitted since its principal appeal (made by Uwantege Louise was equally not admitted). However, Nizeyimana Venant’s cross-appeal will solely be examined on the issue concerning the incurred case costs. The Court ordered Uwantege Louise to give each respondent 500,000 Rwf for court representation cost before the appellate court, adding to charges from the first instance. While for Niyonshuti Iddi Ibrahim and Access Bank Rwanda Plc, she shall give them 100,000 Rwf for case bill costs. The filing fee that Uwantege Louise deposited shall remain in the State treasury, as it was used to cover the proceedings expenditures.

Uwantege Louise appealed the above ruling before the Court of Appeal and she lamented about the Commercial High Court’s ruling on her violation of the appeal time limits, and she argued that the court held it so in a blatant contravention of article 275 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labor and administrative procedure, and she pleaded the court for the errors rectification.

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All respondents present (apart from RDB who did not appear for the hearing) argued that the appeal by Uwantege Louise has no justification since she has not been able to rebut the Commercial High Court’s findings on her late appeal. They therefore requested the court to order her refund them for Counsel fee, and for all related costs that were incurred for this appeal level. Furthermore, Nizeyimana Venant prayed the court to order Uwantege Louise to pay him for some features she later dismounted from the purchased house, and compensate him for all the rentals he kept paying yet he had his own house.

The case was heard in public on the 11/11/ 2014 with Uwantege Louise represented by Counsel Komezusenge Deogratias and Counsel Nuwagaba James, while Niyonshuti Iddi Ibrahim was assisted by Counsel Kwizera Bernard, Niyeyimana Venant was represented by Counsel Rugwizangoga Samuel, Access Bank Rwanda Ltd was represented by Counsel Uwizeyimana Jean Baptiste. RDB had been legally summoned but they never appeared before the court, neither did they provide an explanation for their default.

With reference to the above provided disagreements, the court examined the following issues: a. Whether the Commercial High court made an error by holding that the appeal by Uwantege Louise is time-barred; b. Whether the cross-appeal made by Nizeyimana Venant is admissible;

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c. Whether parties’ requests for representation fees and for case bills costs are worth- considering. II. THE ISSUES OF THE CASE AND THEIR ANALYIS 1. Whether the Commercial High Court made an error by holding that the appeal by Uwantege Louise is time-barred.

In their submissions and pleadings, Uwantege Louise’s attorneys argued that the Commercial High Court held that Uwantage’s appeal was time-barred, and the court held it so in violation of article 275 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labor and administrative procedure which provides that while calculating time for appeals deadlines, the day that give rise to an appeal right is not included. They also argued that looking at the complementarity nature of laws, the appeal by Uwantege Louise should be admitted with reference to article 52 of the Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts, calling it an exception to the above mentioned article 188 of the Law n0 22/ 2018 of 29/04/2018 relating to civil, commercial, labor and administrative procedure.

Uwantege Louise’s attorneys argued that the Commercial High Court should not have made reference to a certain precedent from case RCOMAA 00031/2020/CA rendered by the Court of Appeal since such a precedent has been overturned by another

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precedent along case RCOMAA 00090/2022/CA still rendered by the Court of Appeal on the 14/10/2022, whereby in its’ 24th paragraph, the court held that while computing the appeal delay time limits, the judgement pronouncement day is not included. They therefore argued that considering all provided explanations, Uwantege Louise’s appeal deadline date was the 28/06/2024, and she observed it. And therefore, her appeal should have been admitted.

All respondents (apart from RDB who did not appear) argued that the appeal by Uwantege Louise has no justification. In their explanations, they concurred with the ruling on the appealed judgement, and argued that while calculating the appeals time limits for summary procedures, reference is made to article 188 (2) of the above mentioned Law n0 22/2018 of 29/04/2018, while article 275 of the same law is only meant for the ordinary appeals. And they argued that in her appeal, Uwantege Louise cannot debunk the above stance, and neither does she highlight the committed error. While for the issue of a precedent from case RCOMAA 00090/2022/CA which the appellant’s attorneys allege to have replaced the court’s reference, respondents argued that such an allegation is irrelevant since those cases are not of the same nature; arguing that the precedent from case RCOMAA 00090/2022/CA only concerns issues to do with deadlines for filing appeals to the Registrar General.

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DETERMINATION OF THE COURT

For this issue, the disagreement lies into whether the Commercial High Court made an error by holding that Uwantege Louise’s appeal on her claim for annulment of a public auction was time-barred and therefore inadmissible

Article 188 (2) of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure, concerning summary procedures appeals deadlines provides the following “… the appeal is made within three (3|) working days from the time the order was pronounced or from the day the parties were notified of the decision. The case is also decided in a period not exceeding three (3) working days’ (…)

Article 260 (5) of the above mentioned Law n0 22/2018 of 29/04/2018 concerning application for annulment of public auctions provides that such applications are filed and heard within the time limits meant for summary procedures.

Article 275 of the same above mentioned Law n0 22/2018 provides that for the time limits set in terms of days and hours, shall be calculated from a day to day, or an hour to hour. However, the day of the act or of an event that gave rise to the claim shall not be taken into account, but the deadline date shall be included.

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The issue of calculation of deadlines for appeals against courts’ decisions on claims for annulments of public auctions together with the interpretations of the above mentioned articles 188, 260, and 275, have been examined along case RCOMAA 00031/2020/CA with SOPROMETAL Ltd v. BANQUE POPULAIRE DU RWANDA AND RDB’s REGISTRAR GENERAL rendered by the Court of Appeal on the 25/08/2020. For that case, the court examined an objection raised by BANQUE POPULAIRE DU RWANDA Ltd, whereby the Bank requested the court to dismiss the appeal by SOPROMETAL Ltd due to the latter’s appeal violation of the three days’ time limit provided under article 188 of the above mentioned Law n0 22/ 2018 of 29/04/2018, and whereby SOPROMETAL Ltd was arguing that the raised objection is pointless, adding that the appeal deadline was observed with reference to articles 275 and 276 of the same law, whereby those articles make it clear that when calculating for the appeals time limits, the ruling pronouncement day together with the official public holidays are not included .

While examining the above issue, the court analyzed the provisions of the above mentioned articles 188, 260 (5) and 275, and under paragraph 16 to 19 of case RCOMAA 00031/2020/CA, the Court of Appeal held the following: - Article 260 (5) of the above mentioned Law n0 22/2018 of 29/04/2018 denotes that the application for annulment of public auctions are file to courts with reference to deadlines provided for summary procedures;

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- Under civil procedure, the provisions of article 275 of the above mentioned Law n0 22/2018 of 29/04/2018 only apply in the absence of any other legislative precision on the computation for delay time limits. It is therefore clear that by the above article, the Legislator intended to give a general guidance for calculating time deadlines. Nevertheless, as the above mentioned Law indicates, the Legislator can at times thereby insert a related exception for a specific context, and in such a situation, it is the exceptional provision that applies. - The provision of article 188 of the aforementioned Law n0 22/2018 of 29/04/2018 is an exception to the provisions of article 275 of the very Law. This is so true since article 188 provides for a specific guidance for computing appeal time deadlines for summary procedures. And that is why it is the provisions of article 188 that applied for case RCOMAA 00031/2020/CA.

For the above case, the Court of Appeal explained that with reference the above mentioned article 188, the appeal time deadline started running from 9th /01/2020, the pronouncement date, and the three days’ time limit elapsed on the 13th, and that was the deadline date for SOTRAPROMETAL Ltd’s appeal. Therefore, their appeal of 14th /01/2020 was not in line with legal provisions for appeals on summary procedures. And the court therefore held that the objection raised by BANQUE POPULAIRE DU RWANDA Ltd has justification.

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Issues about summary procedures appeals deadlines have also been examined along case RPA 00020/2024/CA with the Prosecution v. Kantesi Odette and Kanyabugoyi Pascasie rendered by the Court of Appeal on the 27/09/2024. For that case, the court examined whether the appeal made by Kantesi Odette against the High Court’s ruling on her urgent claim about invalidating the court’s ruling on case RS/RECT/RP 00001/2023/HC/KIG, whereby she complained that a judgement copy she handed back for errors rectification was actually rewritten since it was returned different from the original, and her appeal was found time-barred and therefore inadmissible.

For the above case, the Court of Appeal held that article 188 (2) of the above mentioned Law n0 22/2018 of 29/04/2018 denotes that when a summary procedure was heard in the presence of a party, the latter has to file a related appeal within three working from the ruling pronouncement, or from the date the pronouncement was uploaded into the IECMS technology, that is, the party’s notification of the ruling. The court referred to the foregoing explanations, and held that the appeal made by Kantesi Odette against the ruling on case RP 00016/2024/HC/KIG did not comply with the due three days’ time deadline for a summary procedure that was pronounced on the 21/05/2024, and for which the judgement copy was upload into the IECMS on the 22/05/2024, the date taken for her notification of the ruling ; but she filed her appeal on the 26/05/2024, yet her appeal deadline elapsed on the 24/05/2024, and her appeal was therefore found inadmissible.

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Coming back to the appealed case, the Commercial High Court made reference to articles 188 and 260 of the above mentioned Law n0 22/2018 of 29/04/2018 relating to civil, commercial , labor and administrative procedure, and it also referred to a precedent from case RCOMAA 00031/2020/CA, and under paragraph 28, it held that the appeal by Uwantege Louise came in late due to her failure to observe the three days’ time limit that started running from 25/06/2024 and ended on 27/06/2024, since she filed her appealed on the 28/06/2024.

Considering all the explanations that are provided from paragraph 21 -26 of this case, this court found that when the Commercial High Court held that Uwantege Louise filed her appeal late, it made no error. Just as the case file indicates, she appealed against the court’s decision on a claim for the annulment of a public auction, and as it has been above elucidated, such claims are handled within time limits meant for summary procedures. And such time limits are computed with reference to the provisions of article 188 of the above mentioned Law n0 22/2018 of 29/04/2018, since it is the sole that provides for a specific way for calculating appeals deadlines for summary procedures; and it constitutes an exception to the provisions of article 275, which is a general guidance for all appeals time deadlines, and this is exactly the Commercial High Court’s stance.

With regard to arguments made by Uwantege Louise’s attorneys contending that the court’s reference precedent has been superseded by a precedent from case

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RCOMAA 00090/2020/CA with Muhire Samuel et al. v Kigali Business Centre Ltd (KBC Ltd), the court found such an argument void, since for the above mentioned case, the court examined about appeals time deadlines with regard to the Registrar General’s regulations on applications for annulment of public auctions. It is therefore clear, that such a judgement cannot be taken as a precedent for appealing a judicial summary procedure.

With regard to an argument by Uwantege Louise’s attorneys by which the court should consider the complementarity of laws and admit Uwantege’s appeals with reference to article 52 of the Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts, and calling it as an exception to the provisions of article 188 of the above mentioned Law n0 22/2018 of 29/04/2018; the court found it irrelevant. Article 52 constitutes no exception to the provisions of articles 188 as they allege; it only concerns about the Court of Appeal’s jurisdictions, and it has nothing to do with the litigation at hand, and it therefore serves no reference for this case.

Considering all the above provided explanations, before this court, the appeal made Uwantege Louise has no justification. Whether the cross-appeal made by Nizeyimana Venant has justification.

Nizeyimana Venant prayed the Court to order Uwantege Louise to give him 17,137, 874 Rwf, equivalent to the house features that she dismounted from the house he bought, and he claims the sum will help him

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refurbish his house. He also requested for a refund over 11,360,000 Rwf that he has so far paid for rentals, yet he was supposed to be using a house he bought. He claimed such a compensation from Uwantege Louise accusing her of initiating a claim for annulment of an auction for which she well knew it was lawfully conducted.

Uwantege Louise argued the claims by Nizeyimana Venant are null, more so that he presented no supporting evidence, and she claimed of committing no vandalism on the house. DETERMINATION OF THE COURT

Article 152 of the Law n0 22/2018 of 29/04/2018 relating to civil, commercial, labor and administrative procedure as modified and completed to date provides that the respondent before an appellate court may also have claims to be made in his or her defense. The cross-appeal is filed by the respondent against the appellant or against other respondents; However, when the principal appeal is not admitted, or when it is struck off the roll, such a situation does not prevent the appellant from seeking refund for the case bill costs.

The above mentioned article denotes that while presenting his/her defense before an appellate court, a respondent may raise a claim against the the appellant or against co-respondents. However, when the principal appeal is not admitted or struck off the appeals roll, the

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appellant can only claim for the incurred appeal related expenses.

Nizeyimana Venant is claiming for the same compensation he had sought along the appealed ruling, but the appellate court held that his cross-appeal is not admitted due to the dismissal of the principal appeal. This court has as well examined about the admissibility of the principal appeal as filed by Uwantege Louise; as this court has above explained, the principal appeal has not been admitted, and the court based its decision on the aforementioned article 152. Therefore, the court found no way of examining a cross-appeal on the damaged house, and paid rentals, yet the related principal appeal has not been admitted neither by the previous appellate court nor by this very court.

Considering all the above provided explanations, the cross-appeal made by Nizeyimana Venant is hereby not admitted.  About the parties’ requests for refund for court representation fees and the incurred case related expenses.

All respondents have prayed the Court of Appeal to order Uwantege Louise to refund them for courtroom representation fees and for the incurred case bill costs: Nizeyimana Venant requested for 3,000,000 Rwf meant for Counsel fee, and 500,000 Rwf for the incurred case related expenses; Access Bank Rwanda Ltd and Niyonshuti Iddi Ibrahim each requested for 1,000,000 Rwf for courtroom representation fee , and 500,000 Rwf

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for case bill expenses, and the requests came adding to charges granted by the previous court.

Uwantege Louise’s attorneys argued that the respondents’ requests for court representation fees and for the incurred case related expenses are not worth- considering since it is not Uwantege Louise who wanted lawsuits; she only sued because she was grieved and she needs justice. DETERMIANTION OF THE COURT

Article 111 of the Law n0 22/2018 of the 29/04/2018 relating to civil, commercial, labor and administrative procedure provides the following: The claim for representation fees is incidental to the principal claim, and it aims at repaying expenses incurred during judicial proceedings. The claim for legal costs is adjudicated at the same time with the principal claim. However, it can also be admitted and adjudicated even if the principal claim has not been admitted.

The court found that it is Uwantege Louise who appealed the ruling, and therefore made respondents to make a follow-up on the case and look for lawyers to plead the case for them. And as it has been above explained, Uwantege Louise’s appeal was found void, and therefore the court referred to the above mentioned article 111, and by its own discretion, it allowed Nizeyimana Venant, Access Bank Rwanda Ltd, and Niyonshuti Iddi Ibrahim, each 700,000 Rwf for court representation fee,

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and 200,000 Rwf for the incurred case related expenses. The court held it so since their respective requested amounts were not surely accounted for. III. DECISION OF THE COURT

Holds that the appeal made by Uwantege Louise has no justification;

Holds that the cross-appeal by Nizeyimana Venant is not admitted;

Holds that the ruling on case RCOMA 00397/2024/HCC rendered by the Commercial High Court on the 17/07/2024, is stayed;

Orders Uwantege Louise to give Access Bank Rwanda Ltd, Niyonshuti Iddi Ibrahim and Nizeyimana Venant, each seven thousand (700,000 Rwf) for court representation fees, and two hundred thousand (200,000 Rwf) for the incurred case related costs for this appeal. Rules that the deposited court fees covered the proceedings expenditures.