UWIMANA v KAGITARE

UWIMANA v KAGITARE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2020-02-21 - Case/document no.: RS/INJUST/RC 00002/2018/SC - Collection: Supreme Court

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UWIMANA v KAGITARE [Rwanda SUPREME COURT – RS/INJUST/RC 00002/2018/SC (Mukamulisa, P.J., Nyirinkwaya, Cyanzayire, Rukundakuvuga and Hitiyaremye, J.) February 21, 2020] Family law – Divorce – Sharing of the matrimonial property – A divorce ruling terminates the community property regime and the spouses share their assets equally or in any other consented way – In case of the existence of common assets unrevealed at the time of divorce nothing prevents the interested person to sue at the time of their discovery in order to also subject them to sharing. Facts: The case was initiated for the first time in the Primary Court of Kirehe where Uwimana sued Kagitare for 3.6 ha of area of forest, alleging that the said land belongs to her and her husband Mwumvaneza with whom they got legally married before getting divorced by the court ruling rendered in America where they went to live. At the time of divorce, such property was not included into the assets they had to share but the Court held that would there be discovered another asset, they can sue for its sharing, the process undertaken by Uwimana since the said property got misappropriated by Kagitare who was the spouse to the older brother of Mwumvaneza. In the course of trial, Kagitare raised an objection alleging that Uwimana lacks the standing to sue for the property belonging to Mwumvaneza because they divorced. The Court held

that the divorce ruling he produced was not approved for enforcement in Rwanda therefore that it should not be relied on to decide that the claim of Uwimana is founded and that the forest she sued for belongs to her and Mwumvaneza. Kagitare lodged appeal to the Intermediate Court of Ngoma indicating that the Court wrongly rejected the objection he raised that Uwimana lacks standing to sue. The Intermediate Court dismissed her appeal and maintained the ruling of the Primary Court. Later on, Kagitare initiated a claim for the enforcement of the judgment delivered by the Court in America, and the High Court found the ruling valid and could be enforced in Rwanda. Kagitare has later applied for review of the ruling of the Intermediate Court where she relied on such enforcement ruling by the High Court, and the Intermediate Court quashed the ruling of the Primary Court against which review was applied on the ground that Uwimana divorced from Mwumvaneza, therefore she was not qualified to sue for the property of Mwumvaneza. Uwimana was not satisfied with the ruling and wrote to the Chief Ombudsman requesting the review of the case due to injustice. The Chief Ombudsman wrote to the President of the Supreme Court indicating the injustice occasioned by the judgment against which she applied for review due to injustice. The Supreme Court heard the case and examined whether Uwimana has the

standing to claim for the property she co-owned with Mwumvaneza for the purpose of sharing it following the divorce ruling. The Counsel for Uwimana stated that the reason they have applied for review due to injustice is that the Court held that she has no standing to claim the property belonging to Mwumvaneza following their divorce while her claim has the objective of including the disputed forest into the common property because in the course of the divorce trial, Mwumvaneza denied to have any property in common with her in Rwanda, and she adds that the fact that there has been a divorce trial does not deprive her of the right to property she had in common with Mwumvaneza, especially that her claim does not intend to turn the forest into her own, rather she requests that it must be included into the common property that should be subject to sharing. Kagitare states that it has not been held in the divorce trial that whenever concealed assets would be discovered, they shall be shared, because they shared what they owned through such court decision.

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Held : 1. A divorce ruling terminates the community of property regime and the spouses share their assets equally or in any other consented way. In case of the existence of common assets unrevealed at the time of divorce, nothing is likely to bar the interested person to sue at the time of their discovery for the purpose of sharing them. Thus, Uwimana has the right to sue for the forest that was not declared to be part of the property they ought to share in the course of divorce in order to include it into the property subject to sharing.

2. Considering that there are reliable elements of evidence proving that the forest in dispute belongs to Mwumvaneza and which he shares with Uwimana, it should be included into the common property in order to share it. Application for review due to injustice has merit. The ruling of the judgment under review is quashed. Statutes and statutory instruments: Law nº32/2016 of 28/08/2016 governing persons and family as amended and complemented to date, article 6 (1&2); Law nº27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions, article 8; Law no 15/2004 of 12/6/2004 relating to evidence and its production, article 65. No case referred to. Judgment I.

BRIEF BACKGROUND OF THE CASE [1] Uwimana Marine got legally married to Mwumvaneza Justin under community of property regime in 1990 in former Rusumo Commune. After 1994, they went to live in United States of America where they later engaged into the divorce case number 2009-54209, rendered by District Court of Harris County, Texas, on 11/06/2010 that apportioned them their common assets. [2] Due to the fact that Uwimana Marine was claiming that there is another property located in Rwanda that was not shared, she came to see it and it is constituted by the forest covering the area of 3,6 ha in Musaza Sector, Kirehe District. She realised that Kagitare Dancille, the spouse to Mutabazi, the older brother of Mwumvaneza Justin, exploited such property. For that reason, she filed a claim to the Primary Court of Kirehe, requesting to hold that such property belongs to her and Mwumvaneza Mparirwa Justin, and Kagitare Dancille was forced to intervene. [3] Kagitare Dancille raised an objection stating that Uwimana Marine has no standing to sue for the property pretending to be the spouse to Mwumvaneza Justin while they have already been divorced in the country where they live, but the objection was rejected based on the fact that the divorce trial has not been approved for enforcement before Rwandan Courts. On 31/01/2011, the Primary Court of Kirehe tried the case RC 0576/10/TB/KRH and declared the claim of Uwimana Marine with merit, therefore that the forest covering the land area of 3.6 ha located in Musaza Sector belongs to Mwumvaneza Mparirwa Justin and Uwimana Marine. [4] Kagitare Dancille lodged an appeal to the Intermediate Court of Ngoma where she stated that the Primary Court disregarded the objection she raised that Uwimana Marine lacks standing to claim for the

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property pretending to be the spouse to Mwumvaneza while they have already divorced. On 20/10/2011, the Intermediate Court of Ngoma tried the case RCA 0048/11/TGI/NGOMA and declared the appeal lodged by Kagitare Dancille unfounded, and upheld the ruling of the judgment RC 0576/10/TB/KRH. [5] The Intermediate Court of Ngoma relied its decision on the fact that Kagitare Dancille failed to produce any element of evidence that Uwimana Marine divorced from Mwumvaneza Justin since the divorce decision rendered in the United States of America did not undergo enforcement procedure before the High Court to be executed in Rwanda. [6] Kagitare Dancille initiated a claim to the High Court, Chamber of Rwamagana where she requested the judgment Nº 2009-54209 rendered by the District Court on 11/06/2010 be enforced in Rwanda. The High Court, Chamber of Rwamagana tried the case on 18/07/2013 and found the judgment Nº 2009-54209 valid and enforceable in Rwanda. Kagitare Dancille produced it as a new element of evidence and applied for review of the judgment RCA 0048/11/TGI/NGOMA rendered on 20/10/2011. [7] On 27/02/2014, the Intermediate Court of Ngoma tried the case RCA 0334/13/TGI/NGOMA and found the application for review by Kagitare Dancille with merit. Thus, it quashed the judgment RCA0048/11/TGI/NGOMA delivered by the Intermediate Court of Ngoma on 20/10/2011 and the judgment RC

0576/10/TB/KRH delivered by the Primary Court of Kirehe on 31/01/2011. The Intermediate Court of Ngoma relied on the fact that Uwimana Marine pleaded such cases without legal standing since she was no longer the spouse of Mwumvaneza Justin. [8] On 31/05/2016, Uwimana Marine submitted the request to the Office of the Ombudsman alleging that she suffered injustice, and after analysis of her case, it wrote to the President of the Supreme Court requesting the review of the case RCA 0334/13/TGI/NGOMA due to injustice. [9] In the decision of 07/02/2018, the President of the Supreme Court decided that the application for review due to injustice against the judgment RCA0334/13/TGI/NGOMA be recorded in the docket for retrial. The application was recorded on RS/INJUST/RC 00002/2018/SC. [10] Counsel Intwazayamugabo Armand for Kagitare Dancille raised an objection for inadmissibility of the application stating that Uwimana Marine lacks standing to sue based on the following grounds : a. the fact that her identification is doubtful because she sometimes adds Mukamana to her names, and that she altered the names of Mwumvaneza Justin to Mparirwa while according to his passport as well as marriage certificate, it is indicated Mwumvaneza Justin ; b. the fact that she does not indicate the ownership link that she maintains with regard to the claimed forest and that which she maintains with

Mwumvaneza Justin, which would be the basis of her interest and standing to sue ; c. the fact that Munyana Amina who initiated all these cases states that she relied on the message she was sent by Uwimana Marine on 27/10/2010 ; which besides, was sent after the divorce judgment became final and she must have managed the property of Uwimana Marine and her husband with the area of 8,8956 are, but despite that, she claimed for 3,6 ha ; d. The fact that the litigant that Counsel Niyibizi Diogene represents is doubtful, because the summon he produced which he alleges to have been notified of was not filled and he did not sign it as having the power of attorney whereas the court bailiff signed it on 05/02/2018 before the initiation of such claim because it was filed on 08/02/2018. [11] Counsel Niyibizi Diogène for Uwimana Marine retorted on such objection that :

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a. the identification of his client is clear in the system and that the relationship she has with regard to the subject matter has to do with her husband Mwumvaneza Justin, also known as Mparirwa in Rwanda as indicated in the document of 11/08/2010, where a witness declared that the land was awarded to Mparirwa, which Kagitare admitted and endorsed. b. the court decision delivered in America that is the origin of all these cases, that pronounced divorce between Uwimana and Mwumvaneza Justin, held that whenever there will be discovered any other asset concealed by one of the parties, the interested party would sue for that. c. the objection raised for the first time at the Supreme Court should not be admitted. [12] The hearing of the case was scheduled on 09/10/2019 and held in public whereby Kagitare Dancille appeared and represented by Counsel Intwazayamugabo Armand while Uwimana Marine was represented by Counsel Niyibizi Diogene. Before the hearing on the merits of the case, Counsel Intwazayamugabo Armand informed the Court that he abandons the statements about the objection based on the identification of the applicant because after being aware of the identification documents submitted by Uwimana Marine, he deemed that he has no reason to maintain such objection. He however states that he maintains the objection relating to the fact that Uwimana Marine lacks standing to sue,

and the Court notified the parties that such objection should not be admitted because the cases under review for injustice are final, therefore that such objections would not be reexamined unless the injustice emerged from the same objection. [13] The hearing on the merits was resumed and closed where the parties were notified the date of the pronouncement to be 25/10/2019. In the course of deliberation, the Court deemed that before the trial, there are some proceedings to be carried out to help the Court to determine the owner of the disputed forest, those include conducting site investigation for interrogating witnesses and National Land Authority staff. [14] The site investigation was carried out on 15/01/2020, and the hearing was resumed on 04/02/2020 in the presence of all parties as well as Mukunzi Emmanuel, a staff in National Land Authority. Parties were notified of the date of the pronouncement of the judgment to be 21/02/2020. [15] The main issues that parties debated on and which were examined in this case consist of whether following the divorce verdict, Uwimana Marine is qualified to claim for the property she alleges to co- own with Mwumvaneza Justin but which was not mentioned in such divorce judgment for the purpose of its sharing. They also debated on the issue about the determination of the owner of the forest in dispute where Kagitare Dancille alleges to belong to her, the allegations supported by Mwumvaneza Justin, while Uwimana Marine states that it was planted by Mwumvaneza Justin, with whom they co-own it. II.

LEGAL ISSUES AND THEIR ANALYSIS 1. Whether Uwimana Marine is qualified to claim for the property she co-owned with Mwumvaneza Justin for the purpose of its sharing subsequent to divorce judgment [16] Counsel Niyibizi Diogene for Uwimana Marine states that the reason that led her to apply for review due to injustice consists of the fact that the Court decided that she lacked the standing to claim for the property of Mwumvaneza Mparirwa Justin on the ground that they got divorced while her claim consisted of holding that they co-owns the land with 3.6 ha of area covered with the forest, the claim she initiated because in the course of divorce case, Mwumvaneza Mparirwa Justin denied that they did not have any property in common in Rwanda.

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[17] He states that the fact that there has been a divorce case does not deprive her of the right to the property she had in common with Mwumvaneza Mparirwa Justin before their divorce because she has the right to share with her former husband the property that would be discovered to have been part of common property as it was provided by article 24 of the Law no 22/99 of 12/11/1999 to supplement book one of the civil code and to institute part five regarding matrimonial regimes, liberalities and successions (that was into force at the time of the trial of the case review). [18] He adds that Uwimana Marine does not claim the forest to belong to her because she requests it to be part of the common property that she has to share with Mwumvaneza Justin; thus, the divorce trial should not deprive her of the right to claim for the property she co-owned with him since the sharing of the asset intervenes after divorce. [19] Counsel Intwazayamugabo Armand states that the divorce case has never held that once it is discovered the concealed asset, they will be shared because such judgment shared between them the property they owned.

DETERMINATION OF THE COURT [20] Article 6, paragraphs 1 and 2 of the Law nº32/2016 of 28/08/2016 governing persons and family as amended and complemented to date, reads that: “The status and capacity of Rwandans, both living in and outside Rwanda are governed by Rwandan laws. However, a Rwandan national with dual nationality domiciled abroad may be governed by the law of his/her choice, either that of Rwanda or that of another country of which he/she is a citizen.” [21] Based on such provision, a Rwandan with another nationality may be governed by the law of her/his country of residence or by Rwandan law depending on his/her choice. [22] Uwimana Marine is a Rwandan with American nationality too; thus, she may be governed by American law or Rwandan law. She initiated a claim before Rwandan Courts based on Rwandan legislation requesting the court to hold that there exists the property she co-owned with Mwumvaneza Justin that was not included into the assets they shared in the course of divorce, in order to share it too. [23] Article 8 of the Law nº27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions provides that “Where dissolution of community of property regime occurs following divorce or change in the type of matrimonial regime, those whose marriage was under the community of property regime, share equally or according to any other agreed-upon method

the assets and liabilities ….”. [24] Such article implies that the divorce case of married persons dissolves the community of property regime, and they share equally or according to any other agreed-upon method the assets. It is divorce verdict that determines the method of common assets sharing by the ex-spouses, but in case there are assets not revealed at the time of that trial, nothing prevents that whenever they are discovered, the interested person would seize the court for their sharing. If it is not the case, such property would be owned exclusively by one of the ex-spouses, which is contrary to article 8 of the no 27/2016 of 08/07/2016 stated above. [25] The judgment 2009- 54209 rendered on 11/06/ 2010 by District Court of Harris County in Texas, in the United States, pronounced the divorce between Uwimana Marine and Mwumvaneza Justin and determined the method of sharing of the common properties. However, in case of the existence of other

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undeclared property at the time of trial but discovered afterward, nothing is likely to prevent the interested person to claim for their sharing as explained above. [26] Based on the foregoing and the provisions of the law stated above, the Court is of the view that Uwimana Marine has the standing to claim for the property she once co-owned with Mwumvaneza for the purpose of sharing it after the divorce trial.

2. Determination of the owner of the forest in dispute [27] Counsel Niyibizi Diogene for Uwimana Marine states that there are the following reliable elements of evidence proving that the property made of the forest in dispute belongs to Mwumvaneza Mparirwa Justin and Uwimana Marine: a. The land title indicates that the forest registered on UPI 5/05/08/05/2529 belongs to them; b. Payment slips of land registration fees and the provisional land registration certificate in relation to another part of land registered on number 1200. Such certificate indicates that the names of the owners of the land is Mparirwa Justin and Uwimana Marine where the title is not yet available due to disputes ; c. The meeting statements of 17/12/2010 where Kagitare Dancille declared that the land belongs to Mparirwa Justin. [28] He declares that the area of the and in dispute is 3.6 ha and has never been subject to land sharing. He explains that be it before the Primary Court of Kirehe or before the Intermediate Court of Ngoma, Kagitare Dancille was stating that such land belonged to her until the pretrial conference was done, and it is the first time she states that the land of Mwumvaneza Justin was subject to land sharing wit Bendantunguka Augustin. [29] He adds that the document regarded as the witness declaration by Bendantunguka Augustin should not be given merit since it is not a land sharing

statement and the latter has never made any opposition to the registration of such land in the names of Mwumvaneza Mparirwa Justin. [30] Regarding the fact that the land was registered in the names of Kagitare Dancille where her name was later altered and replaced by Mwumvaneza Justin and Uwimana Marine, he explains that Kagitare Dancille initially registered the land in her names but that later on, the population revealed that it does not belong to her as it rather belongs to Mwumvaneza Mparirwa Justin, the reason why the National Land Authority deleted her names and mentioned the names of Mparirwa Justin. [31] He adds that when the the land title was issued, Uwimana Marine and Mwumvaneza Mparirwa Justin were absent, the reason why it was signed in the form of on behalf of, despite that she does not know the person who signed in place of Mparirwa Justin. Regarding the land registration fee amounting to 1200, he states that it was paid by Kagitare Dancille, who however had been reimbursed. [32] Counsel Niyibizi Diogene concludes by stating that for determining the owner of the forest in dispute, the Court would rely on articles 651 and article 712 of the Law nº 15/2004 of 12/06/2004 relating 1 The court assesses with discretion the relevance, pertinence and admissibility or rejection of testimonial evidence. It is not bound by the number of witnesses. It shall mainly consider

their knowledge of facts and the objectivity and sincerity of their declarations. 2 All witnesses with reliable information for the resolution of litigation are heard and neither the court is allowed to prevent expedient witness from giving testimony nor shall the parties disqualify him. However, parties may have the right to state all their observations on grounds of partiality vis-à-vis witnesses.

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to evidence and its production, on the outcome of the investigation as well as witness declaration by Mukunzi Emmanuel. [33] Counsel Intwazayamugabo Armand states the the forest in dispute belongs to Kagitare Dancille based on the following reasons : a. The forest that belonged to Mwumvaneza Justin was awarded to Bendantunguka Augustin in the course of sharing as it is evident in the testimony he submitted, and it has nothing to do with that of Kagitare Dancille ; b. The provisional land registration certificate is registered on Kagitare Dancille but her name was crossed out by pen and replaced by Mwumvaneza Justin fraudulently ; c. Mwumvaneza Justin whom they allege to have made land registration was in America at the time of the registration, and he himself admit that the property he owned undergone land sharing ; therefore, he does not have any property in Rwanda; d. The land title was fraudulently signed on behalf “PO”; therefore, it was counterfeited. e. She does not admit the meeting in which it is alleged that Kagitare Dancille declared that the forest is not hers because she never signed on the meeting statement; thus, she should not be held liable for the declarations made thereof; f. The statements according to which Kagitare Dancille was reimbursed 1200 Frw are untrue, because whenever the issue of changing the person mentioned on the title arose, a report was made,

consequently, the fact that such report is inexistent consists of the evidence that Kagitare Dancille name was crossed out of the title fraudulently. [34] Mukunzi Emmanuel who was summoned by the Court for the purpose of witness hearing about the emphyteutic lease Nº 2529/KIR/MUS of 01/09/2011, declared to the Court that he is the person who really signed the title on the basis of the information collected in the course of land registration process. Regarding the person who signed in the form of on behalf “PO”, he declares that titles to be delivered were so many and that after they were signed, they were transferred to the administration of the Cell for their distribution, and for this reason, he could not know the person who signed for its reception.

DETERMINATION OF THE COURT [35] Uwimana Marine confirms that the forest in dispute belongs to Mwumvaneza Justin, which they co-own because they were legally married under the community of property regime. The main elements of evidence she relies on consist of: a. The dispute resolution report between the agents representing the family of Mparirwa3 and Mrs Kagitare Dancille; b. Payment slip for the acknowledgement of the payment of land registration fees; c. Provisional land registration certificate; d. Emphyteutic lease No 2529/KIR/MUS of 01/09/2011. 3 During the site investigation carried out by the Court, the people who know the litigants asserted that Mparirwa is the same person as Mwumvaneza Justin. They stated that the most known name in the area is Mparirwa since he added the name of Mwumvaneza for reasons of studies.

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[36] In the course of the examination of the relevance of the submitted elements of evidence, the Court noticed the following: a. The dispute resolution report between the agents representing the family of Mparirwa and Mrs Kagitare Dancille signed by Nkubito Denis who was the Executive Secretary of Nganda Cell, indicates that the interrogated witnessed namely Ngendahimana Védaste and Musonera Casimir confirmed that the forest in dispute belongs to Mparirwa. It indicates also that Kagitare Dancille stated that she admits that the land in dispute belongs to Mparirwa but that they afforested it together. However, her signature is not affixed to such report. b. The payment slip for land registration indicates that the names of Kagitare Dancille were crossed out to mention the names of Mparirwa Justin; c. The lessee mentioned on the emphyteutic lease number 2529/KIR/MUS of 01/09/2011 is Mparirwa Justin and Uwimana Marine and is of 1,514 sqm area while the land in dispute has the area of 3,6 ha. [37] Due to the contestations raised with regard to the documents produced as evidence where the defendant refutes that they never existed where she produces the document established by Bendantunguka Augustin to assert that he was awarded the forest that once belonged to Mwumvaneza Justin in the course of land sharing, the Court deemed that it is relevant to conduct the site investigation in

order to know the truth about the statements of the parties. In the course of such investigation, neighbors to the site of the subject matter were interrogated, as well as the staff that was in charge of land registration who signed the provisional land certificate and the payment slip of the land registration fees. [38] The witnesses who declared the forest to belong to Mwumvaneza Justin are the following : a. The witness named Ngendahimana Védaste (the former Chairman at the time of afforestation who even awarded such land), declared to the Court that Mutabazi (the husband to Kagitare Dancille and a sibling to Mwumvaneza Justin) requested the land for afforestation from him of which he attributed to him. Later on Mutabazi requested the land on behalf of his little brother Mparirwa. He stated that the forest is subdivided into two parts, which means that part belonging to Mutabazi and the part for Mparirwa but that he does not know the demarcation between the two. When reminded of the testimony he has given before that is in the dispute resolution report for the agents for Mparirwa and Mrs Kagitare Dancille where he declared that he attributed the land to Mparirwa, but that as he was a student, his activities were managed by his older brother Mutabazi ; he replied that he was requested the land by Mutabazi on behalf of Mparirwa but that he never made follow up to know whether

they afforested it together ; b. Murambira Eliyazar (who owns the forest nearby the disputed forest) declared that Mutabazi who was the Chairperson of the Sector Council requested Ngendahimana Védaste to apportion the land for afforestation to his little brother Mparirwa who was a student, and later on, Mutabazi hired Ntamakiriro to afforest it. c. Musonera Casimir (with land near the disputed land) also declared to the Court that the land in dispute belongs to Mparirwa and that he bought another plot of land from Kagimbura Gaspard in order to extend his land. d. Twagiramungu Fréderic declared that he is the person who transported by his car the eucalyptus seedlings on behalf of Mparirwa whereby he used to give them to

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Ntamakiriro, who was in charge of afforestation, before asking for the payment from Mparirwa in Nyakinama where he studied. e. The Court also interrogated the employees that took part in the land registration committee who signed on certificates stated above, namely Nyampundu Stéphanie and Niyonsenga Fabien. Nyampundu Stéphanie declared to the Court that: i. She still remembers the issue of Mparirwa clearly; i. Kagitare Dancille was together with the land surveyors and after they made the survey, they mentioned her name on the payment slip as the land owner, and after she reached the office of the Cell where they were mentioning the names in the book and establishing the provisional land registration title, she paid other fees in order to get such title, and another payment slip was drawn in her names; ii. While they were about to issue her the provisional land registration certificate, people shouted and stated that the land she is registering in her names does not belong to her, and for this reason, a lawyer called Cyantengwa Julienne requested her to name the witnesses who could prove if the land belongs to her, and all such witnesses affirmed that the land belongs to Mparirwa Justin; iii. Due to the fact that Kagitare Dancille was given 2 payment slips, Cyantengwa Julienne, the lawyer, instructed her to hand them back. Since the fee was already paid, she advised them to

avoid filling other payment slips; rather, Kagitare Dancille should be paid back her money and her names crossed out, for mentioning the names of the owner of the land who is Mparirwa. iv. Again, due to the fact that the provisional land registration certificate was not yet established, it was correctly established on the basis of the information at hand. v. The reason for the existence of 2 payment slips is based on the fact that one of them was destined to the surveyors, who normally established it at the site of the registered land, while another one was destined to the committee in charge of recording of information and provisional land title. Niyonsenga Fabien who is also recorded on one of the payment slip, stated that the accounts by Nyampundu Stéphanie corroborate what happened without any lie. [39] The Court subpoenaed Mukunzi Emmanuel, the Deputy Registrar of Land title to request information from him in order to know whether he really is the person who signed on the emphyteutic lease title number 2529/KIR/MUS of 01/09/2011 in which Mparirwa Justin and Uwimana Marine are mentioned as the lessees. He asserted to be the person who signed it on the basis of the information collected by the committees that were in charge of land registration. The assertion brings the answer to the issue raised by the defendant alleging that such title has never been

established. [40] Witnesses who declared that the forest belong to Mutabazi : a. Habiyakare Jean declared that the forest land belongs to Mutabazi, who afforested it, and that Mparirwa has nothing to do with it. He stated that Mparirwa’s forest was acquired from Mugambira and was close to that of Mutabazi. They were small trees and were eaten by ants. b. Kagimbura Gaspard declared that he planted trees in the disputed land, and was paid by Mutabazi, and therefore he asserts that the forest belongs to Mutabazi. He state in addition that there is plot of land he sold to Mparirwa which is close to the disputed land,

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who also afforested it and of which he annexed to that of Mutabazi to the extent that no demarcation exists in between. He adds that whenever Mparirwa came in holidays, he used to see him taking a walk in such forest with his older brother Mutabazi ; c. Nyirahumure Frida stated that the disputed forest was planted by Mutabazi. However, her declarations should not be considered by the Court because she is a sister to Mwumvaneza Justin and Mutabazi. [41] Bendantunguka Augustin stated that he lives there since 1996, and was alloted, through land sharing, a part of land from Mparirwa’s land with the size of 50 m out of 150 located over the disputed land. He stated that before the land sharing, there were eucalyptus trees, which were eaten by ants later Bendantunguka Augustin has before submitted the written declarations to the Court stating that he was alloted the plot through sharing of the land that once belonged to Mwumvaneza Justin. It was realised during the investigation that the land that Bendantunguka Augustin alleges to have been alloted through sharing is different from that of disputed afforested land, and thus, his witness declarations would not be of any help to the Court. [42] Regarding on the absence of the signature by Kagitare Dancille on the dispute resolution report of the issue stated above, Murambira Eliyazar, Twagiramungu Fréderic, Kagimbura Gaspard

and Twagirimana Rachid told the Court that Kagitare Dancille participated in the meeting held on 12/07/2010 but that she denied to sign the report after hearing that the witnesses she invited uttered statements different from her expectations. [43] The fact that the emphyteutic lease number 2529/KIR/MUS of 01/09/2011, indicates the land with 1,514 sqm area while the land in dispute is of 3,6 ha; it was obvious to the Court during the investigation that the entire forest used to be of 3,6 ha, on which the road has passed by and divided it into two unequal parts. One of the parts is of 1,514 sqm, of which the title deed was established and submitted to the Court by the parties, while regarding the other part, which is the biggest, no title deed was established due to the dispute that arose over it. [44] Based on article 65 of the Law no 15/2004 of 19/07/2004 relating to evidence and its production providing that the Court assesses with discretion the relevance, pertinence and admissibility or rejection of testimonial evidence, based also on the assessment of all witness declarations made, where most of them concur that the disputed forest belong to Mparirwa, and based on the findings from the site during the investigation, the Court finds that the disputed forest with 3.6 ha of area belongs undoubtedly to Mwumvaneza Justin alias Mparirwa and Uwimana Marine. [45] Accordingly, the Court finds that, following the provided grounds, the disputed forest of 3,6 ha of area located in Nganda Cell, Musaza Sector, Kirehe District belongs to Mwumvaneza Justin who co- owns it with Uwimana Marine since it is not included in the assets that the divorce judgment 2009- 54209 of 11/06/2010 apportioned them.

3. Whether damages should be awarded [46] Counsel Niyibizi Diogene states that Uwimana Marine requests to be paid the following damages : a. Moral damages amounting to 10,000,000 Frw ; b. The court fees that Uwimana Marine was ordered to pay in the case RC 0576/010/TB/KRH rendered on 31/01/2011 and court fees she was ordered to pay in the case RCA 0048/11/TGI/NGOMA ;

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c. Judicial costs amounting to 2,000,000 Frw ; d. Counsel fees paid during the previous cases amounting to 3,500,000Frw ; e. Counsel fees paid at the Supreme Court level amounting to 2,000,000Frw ; f. The loss she incurred from his proceedings amounting to 10,000,000 Frw accrued from expected income due to the fact that since 26/06/2012 till the year 2018, Kagitare Dancille continued exploiting the forest and selling wood steres. [47] Kagitare Dancille retorts that Uwimana Dancille does not deserve to be paid the damages she is requesting because she frauded through her little sister Munyana Amina ; therefore, she requests the Court to dismiss her claim. Kagitare Dancille also filed a counterclaim requesting the Court to order Uwimana Marine to pay her : a. 2,000,000 amount of money for all years of dragging her into unnecessary lawsuits. b. The value for the exploited trees amounting to 10,000,000Frw ; c. Judicial fees and counsel fees at this Court instance amounting to 3,000,000 the total amounting to 15,000,000Frw.

DETERMINATION OF THE COURT [48] The Court finds that Uwimana Marine should not be awarded moral damages she requests for failure to have substantiated them. It also finds that the damages she alleges to have been ordered to pay in the judgement RC 0576/010/TB/KRH rendered on 31/01/2011 and damages ordered to be paid in the judgment RCA 0048/11/TGI/NGOMA rendered on 20/10/2011 are not mentioned in such judgment since she is the person who won them, and she does not provide details thereto, and for this reason, there is no basis it could rely on to award them to her. [49] The Court finds that Uwimana Marine did not produce elements of evidence for 10,000,000 Frw amount that she requests to be paid for lost expected income of which KAGITARE Dancille is liable and generated by the forest ; thus, there is no basis it could rely on to award them to her. [50] Regarding the judicial and counsel fees, the Court finds that the requested amount is excessive while she did not substantiate it; thus, it awards her a discretionary amount of 300,000 Frw of judicial costs and 500,000 Frw of counsel fees at the instant court, the total being 800,000Frw. [51] The Court finds that Kagitare Dancille should not be awarded damages she requested since she did not win any of her claims. III.

DECISION OF THE COURT [52] Finds with merit the application for review of the case No RCA 0334/14/TGI/NGOMA rendered by the Intermediate Court of Ngoma on 27/02/2014 due to injustice. [53] Finds the counterclaim filed by Kagitare Dancille without merit ; [54] Quashes the judgment RCA 0334/14/TGI/NGOMA rendered by the Intermediate Court of Ngoma on 27/02/2014 in whole ;

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[55] Decides that the forest with 3,6 ha of area located in Nganda Cell, Musaza Sector in Kirehe District belongs to Mwumvaneza Justin and co-owns it with Uwimana Marine ; [56] Orders Kagitare Dancille to pay 800,000 Frw of judicial and counsel fees to Uwimana Marine.