UWINEZA ET.AL v POSADA PLUS LTD

# UWINEZA ET.AL v POSADA PLUS LTD

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-11-29 - Case/document no.: RCOMAA 00071/2024/CA - Collection: Court of Appeal

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UWINEZA ET.AL v POSADA PLUS LTD [Rwanda COURT OF APPEAL RCOMAA 00071/2024/CA (Rutazana, P.J.) 29 November 2024] The law on mortgage- Auction- Publication of the auction- Auction notices. The receiver is not obliged to serve the property’s owner with auction notices. The latter is rather notified of the auction terms and conditions which includes the auction schedule. Facts: This case started when POSADA Plus Ltd sued Uwineza (the receiver) before the Commercial Court, seeking the invalidation of the auction conducted on its property registered under UPI: 1/03/05/04/1106, mortgaged with Equity Bank Rwanda; arguing that the auction has been unlawfully publicized. Before hearing of the case, the court deemed necessary to order the forced intervention of Equity Bank Rwanda Plc, the creditor, and that of Mukamurenzi, the mortgage’s buyer. Uwineza and Equity Bank Rwanda Plc contended that POSADA Plus Ltd’s grounds for the invalidation of the auction are unfounded; while Mukamurenzi argued that she bought the disputed property lawfully, and she should not be involved in this case because she has no case to answer. They all s requested for legal costs and advocate fee. In the case RCOM01185/2024/TC, the court held that the reasons for the invalidation of the auction are irrelevant, and it ordered them to refund Uwineza the legal costs, and then refund Equity Bank Rwanda Plc and Mukamurenzi Annet the advocate fee for each. POSADA Plus Ltd appealed to the Commercial High Court requesting it to determine : whether the auction notices were legally served; whether the auction of the disputed property should remain unchanged as long as the underlying debt is still under debate, yet the amount of the involved debt was still under litigation; whether the Commercial court should have ordered POSADA PLUS Ltd ought to pay the defendants the legal costs and the advocate fee, disregarding the fact that it is the court that ordered their forced intervention in the case; whereas Uwineza dragged POSADA PLUS Ltd into lawsuits; whether in case of the auction postponement or its lack of bidders, the auction is not publicized as provided for by the law whether the auction notices were supposed to be handed to the Executive Secretary of the cell instead of Cell Economic Development Officer ( CEDO. All the defendant submitted that the appeal lodged by POSADA Plus Ltd is irrelevant, arguing that the laws governing the auction were observed and they request the legal costs amd the advocate fee. As per the judgment RCOMA 00577/2024/HCC, the court held that the appeal lodged by POSADA PLs Ltd has no merit since the receiver failed to notify POSADA Plus of the second and the third notices of the auction, and it then ordered Equity Bank Rwanda Plc to refund Mukamurenzi with the cost of the auctioned property and it also ordered Uwineza Angelique to pay POSADA Plus Ltd the legal costs and the advocate fee. Mukamurenzi, Equity Bank Rwanda Plc, and Uwineza appealed to the Court of Appeal, and argued that the Commercial High Court discarded evidence proving that POSADA Plus Ltd had

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been notified with the second and the third notices of the auction. Equity Bank Rwanda Plc and Uwineza made reference to article 29 of the instructions of the Registrar General on managing, leasing, auctioning and mortgage acquisition, and added that the receiver had no obligation to serve the owner of the property with the auction notices. POSADA Plus Ltd contended that the appeal has no merit and it requested the court to order that each appellant pay damages for being dragged into an unnecessary litigation. As per the judgment RCOMAA 00071/2024/CA, the court held that the appeal lodged by Mukamurenzi, Equity Bank Rwanda Plc and Uwineza has merit, and that the auction conducted on the disputed property is still valid. Held: A special law takes precedence over a general law (Specialia generalibus derongant). The court ought not to rely on article 253 of the Law n° 22/2018 of 29/04/2018 relating to civil, commercial, labor and administrative procedure, yet there are the instructions of the Registrar General n° 001/2020/org of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage. Therefore, the receiver is not obliged to serve the property’s owner with auction notices. The latter is rather notified of the auction terms and conditions which includes the auction schedule. The appeal has merit. Statutes referred to: Law n° 22/2018 of 29/04/2018 relating to civil, commercial, labor and administrative procedure, article 111; Law n° 13/2010 of 07/05/2010 modifying and completing Law n0 10/2009 of 14/05/2009 relating to mortgages, articles 2 and 3; Instructions of the Registrar Generaln° 001/2020/ORG of 12/05/2020 relating to managing, leasing, auctioning and acquisition of mortgages, articles, 1, 24, 26, 28 and 29. No cases were referred to. Judgment I. THE BACKGROUND OF THE CASE

POSADA Plus Ltd applied for and obtained a loan from Equity Bank Rwanda Plc but POSADA Plus Ltd did not repay it as per the loan agreement. On 09 August 2024, its mortgaged property registered under UPI 1/03/05/04/1106 was auctioned and bought by Mukamurenzi Annet. On t 19 August 2024, POSADA Plus Ltd wrote to the Registrar General requesting the invalidation of the the auction for the following reasons: the fact that the auction notices were not lawfully served, the fact that the amount of the claimed loan is still under litigation under case RCOM 00389/2023/TC, and the fact that procedures related to auction, seizure and surety were not observed.

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When POSADA Plus Ltd realized that the Registrar General had not replied to their letter,, they filed a claim before the Commercial Court suing Uwineza Agelique (the receiver), and they sought the invalidation of the auction, alleging that it was notified in accordance with the provisions of article 258 of the Law n0 22/2018 of the 29/04/2018 relating to civil, commercial, labour and administrative procedure, together with article 10 of the Ministerial order n0 005/MoJ/AG/21 of 07 June 202, and they raised the following reasons:  The fact that POSADA Plus Ltd was not notified of the auction notices since its Managing Director named Ntakirutimana Sandrine, was not served with them.  The fact that the auction notices indicated neither the debtor nor the due debt.  The fact that the auction notices do not featured the photographs of the auctioned property, yet a very important detail to entice the bidders to bid; arguing that the lack of such an information led to bidders’ low turn up especially for the first and second auctions.  The fact that the Executive Secretary of the Cell in which the auctioned property is located testified of not having received the auction notices for him to authorise their posting.

Before hearing the case, the court found it is so important to summon Equity Bank Rwanda Plc, as both the creditor and the mortgagee which requested the auction, together with Mukamurenzi Annet, the bidder who purchased the mortgage.

Uwineza Angelique and Equity Bank Rwanda Plc submitted that all arguments made by POSADA Plus Ltd for the invalidation of the auction are no relevant. while Mukamurenzi Annet alleged that she purchased the disputed property lawfully, and she should not have been summoned to this case because she has no case to answer. All respondents requested for legal costs and the advocate fee.

In the judgment RCOM 01185/2024/TC rendered by the Commercial Court on 18 September 2024, the court held that all grounds that POSADA Plus relied on to request the invalidation of the auction are unfounded, and it ordered the company to give Uwineza Angelique 500,000 Rwf for legal costs and 100,000 Rwf for the legal costs. The court also ordered them to give Equity Bank Rwanda Plc and Mukamurenzi Annet 500,000 Rwf each for the advocate fee.

POSADA Plus Ltd appealed against the judgment and prayed the court to determine the following:  Whether the auction notices of 09 August 2024 complied with the law, notably the provisions of article 253 of the Law N° 22/2018 relating to civil, commercial, labour and administrative procedure, together with the provisions of article 10 of the Ministerial order N°005/MoJ/AG/2021 of 07/06/2021;  Whether the enforcement order mentioned under article 241(5) of the above mentioned Law N° 22/2018 is different from the rest of other enforcement orders such that its publication must not indicate the owner of the property, the creditor and the photographs of the concerned property as per the requirement of the aforesaid article 253;

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 Whether the auction conducted on POSADA Plus Ltd.’s property was to be validated, yet the underlying debt is still under litigation in the case RCOM 00398/2024/TC.  Whether the Commercial court should order POSADA Plus Ltd to pay the defendants the legal costs and advocate fee, ignoring the fact that it is the court itself that ordered their forced intervention in the case; whether Uwineza (the receiver) is the one who dragged POSADA Plus Ltd into lawsuits  Whether, in case of the auction postponement or lack of bidders, the auction is not publicized as provided for by article 29 of; Instructions of the Registrar General n° 001/2020/org of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage  whether the auction notices were not supposed to be handed to the Cell Economic Development Officer(CEDO), instead of the Executive Secretary of the Cell.

All the defendants submitted that the the grounds of appeal put forward by POSADA Plus Ltd are irrelevant, as the laws governing the auction were complied with and they claimed the legal costs and the advocate fee.

In the case RCOMA 00577/2024/HCC decided by the Commercial High Court on 25/10/2024, the court held that the appeal lodged by POSADA PLs Ltd has merit since the receiver failed to serve POSADA Plus Ltd with the second and the third notices of the auction, and it ordered invalidation of the auction conducted on POSADA Plus Ltd.’s property on the 09/08/2024; and it then ordered Equity Bank Rwanda Plc to refund Mukamurenzi with the cost of the auctioned property and it also ordered Uwineza Angelique ( the receiver) to give POSADA Plus Ltd 1,200,000 Rwf for the advocate fee and the legal costs, and 60,000 Rwf for court fees for both the first and the appeal instances.

Mukamurenzi Annet, Equity Bank Rwanda Plc and Uwineza Angelique appealed to the Court of Appeal, and they brought a joint complaint about the fact that the Commercial High Court ignored the evidence submitted to it proving that POSADA Plus Ltd was served with the second and third notices of the auction. Besides, Equity Bank Rwanda Plc and Uwineza Angelique made reference to article 29 of the Instructions of Registrar General on management, lease, auction and mortgage acquisition, and added that the receiver had no obligation to serve the property’s owner with the auction notices.

POSADA Plus Ltd contended that the appeal is irrelevant because the appelants allege that the auction complied with the laws while they were aware that it is not true as explained in the appealed judgment. POSADA Plus Ltd requested the court to order each appellant to pay 1,000,000 Rwf for having dragged the company into unnecessary lawsuits.

The hearing was conducted in public on the 18 November 2024, Mukamurenzi Annet was represented by Counsel Hakizimana Francois Xavier, Equity Bank Rwanda Plc was represented by Counsel Mukandoli Brigitte, Uwineza Angelique was represented by Counsel Twizeyimana Theophile, while POSADA Plus Ltd got represented by Counsel Gahamanyi Justin.

Based on the debated issues highlighted above, the court is set to determine the following issues:

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 Whether the receiver had a mandate to notify POSADA Plus Ltd, the owner of the mortgaged property under UPI: 1/03/05/04/1106 of auction notices;  In case the court finds that POSADA Plus Ltd was supposed to be notified of the auction notices, the court will examine whether such notifications were effected;  The court will also determine the relevance of the damages claimed; II. LEGAL ISSUES AND ANALYISIS THERETO - Whether the receiver ought to notify POSADA Plus Ltd, the owner of the mortgaged property under UPI: 1/03/05/04/1106 of auction notices;

[13] In her filed statements and submissions before the court, Uwineza Angelique (the receiver) and Counsel Twizeyimana Theophile, her attorney, together with Counsel Mukandoli Brigitte representing Equity Bank Rwanda Plc allege that their appeal aims at demonstrating that the auction should not have been invalidated, and they presented the following reasons:  Looking at the provisions of article 29 of Instructions of the Registrar General n° 001/2020/org of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage , especially the section of publication of the auction, the receiver had no obligation to serve POSADA Plus Ltd with auction notices;  Even though this article does not provide it, POSADA Plus Ltd was notified of the auction by a court bailiff who handed the auction notice to Sindayigaya Firmini, a legitimate husband to Ntakirutimana Sandrine, the owner of the property, also the Managing Director of POSADA Plus Ltd. The auction notices were served at POSADA Plus Ltd.’s office but Sindayigaya Firmini declined to receive them and to acknowledge its reception as it is detailed by the court bailiff’s statement; but such a refusal does not remove a fact that the auction notices were served. Moreover, Sindayigaya Firimini is the very person who, on 20 June 2024, had received other related documents which included permit to sale the mortgage, mortgage market valuation report, the request for POSADA Plus Ltd.’s identification information for a linkage to public Online Titles Enforcement platform, and POSADA Plus Ltd never objected about his reception of the previous documents. And still, it is Sindayigaya Firmini who always made a follow-up on the auction via his telephone number 0787277377, as it is indicated by message chats he kept exchanging with Uwineza Angelique. It is therefore clear that POSADA Plus Ltd cannot allege that it was not served with auction notice, yet they deliberately declined its reception.  The fact that on the 20th June 2024, the receiver wrote to POSADA Plus Ltd requesting for the company’s identification information needed for linking the Company to the online Judgements Execution Platform for them to follow the auction procedures; and the request was received by Sindayigaya Firminin on the 20th June 2024 but did not provide the requested identification details. Therefore, it is clear that POSADA Plus Ltd surrendered its right of making a follow-up on the auction updates.

In his submissions, Counsel Hakizimana Francois Xavier, representing Mukamurenzi Annet, alleged that what he criticizes about the judgment appealed against is the fact that the Commercial High Court held that the sale by auction of the property registered under UPI:

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1/03/05/04/1106 be invalidated, on the mere allegation of not serving POSADA Plus Ltd, the owner of the property, with the auction notice, a decision made in a blatant disregard of the presented evidence submitted to it proving that on the 02 July 2024, Mr. Pfakwandika, the Court bailiff, served POSADA Plus Ltd with the auction notice containing all three auctions sessions and their respective dates. Adding that the same announcement was published under IGIHE.COM, an online newspaper, and it was also posted at the premises of the Cell Office. And on the very date of 02 July 2024, POSADA Plus Ltd was n notified of the auction terms and conditions.

Mukamurenzi Annet’s Counsel alleged that the Commercial High Court held that POSADA Plus Ltd had not been linked to the public online Judgments Execution Platform, arguing that Counsel Uwineza Angelique wrote to POSADA Plus Ltd on 20 June 2024 requesting for an email address for a linkage into the Execution Platform but they never reacted, and she had no any other means of linking them to the platform, rather POSADA Plus Ltd acted deliberately with the intent to initiate lawsuits. During the hearing, Mukamurenzi Annet’s attorney explained that the Commercial High Court misinterpreted the facts by basing its ruling on the provision of article 253 of the Law n0 22/2018 of the 29/04/2018 relating to civil, commercial, labour and administrative procedure. Arguing that since the issue at hand concerned the decision of the RegistrarGeneral, the court was bound to base its judgment on the provisions of article 29 of the aforesaid instructions of the Registrar General n° 001/2020/org of 12/05/2020 regulating modalities of management, lease, auction and acquisition of mortgage; and the article never provides whether the mortgagor or the property’s owner should be notified of the auction. Nonetheless, regardless the absence of any legal provision, the receiver made a diligence of informing them as it has been earlier explained. He therefore based on all the provided reasons, and requested the court to Validate the auction.

Both appellants of this case alleged that the judgment RCOMAA 00064/2019/CA, Kayumba Godfrey v. SIMACO Ltd, RDB v. Safari ( see paragraph 23) rendered by the Court of Appeal on the 03 October 2019, and judgment RCOMAA 00028/2023/CA rendered by the Court of Appeal on the 20 October 2023 in Majyambere Industry CO Ltd, Valerien Munyaneza v. Compagnie Generale de Banque Plc should not be relied upon in the appeal case; since their precedents concern complying with the time limits of publicizing the auctions, and that is not the subject matter in this case.

Counsel Gahamanyi Justin representing POSADA Plus Ltd, in his submissions and his statements alleged that that all the filed appeals are irrelevant. Concerning Mukamurenzi Annet’s appeal, POSADA Plus Ltd.’s attorney argued that the Commercial High Court found that the POSADA Plus Ltd had not been served with both the second and the third auction notices, neither were they posted on the premises of the Cell Office. With regard to the first notice, the court held that it had been announced, but it had been done lawfully.

With regard to the above mentioned service of auction notices to POSADA Plus Ltd, Counsel Gahamanyi Justin explained that the allegations by Uwineza Angelique that POSADA Plus Ltd was notified of the auction notices by Mr. Pfakwandika, should not be relied upon to assert that POSADA Plus Ltd, legally represented by Madam Ntakirutimana Sandrine, was lawfully served with the auction notices, more so that the court bailiff did not indicate about the identity and authority link between the notified person and POSADA Plus Ltd; while article 47 of

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the Law Nº 22/2018 relating to civil, commercial, labour and administrative procedure clearly explains how corporates with legal personality, must be notified electronically.

Counsel Gahamanyi went on to explain that the above mentioned article 29 of the instructions of the Registrar General’s Nº 001/2020/ORG provides clearly that when an auction is adjourned or when no bidders turned up, it must be re-advertised; he alleged that such re- advertisement was not done since when they inquired about the posting of the auction notices on the billboard of Rubirizi Cell Office, the home location of the auctioned property, the Cell Executive Secretary replied that they had no records indicating that they had received the concerned auction notices, he also adds that even the court bailiff who went to verify about the posting of the auction notices at the Cell Office notice board, reported having seen a variety of other announcements, including those of the last year 2023, but none relating to the auctioning of POSADA Plus Ltd.’s property featured on the notice board.

He further explained that POSADA Plus Ltd sought assistance from Rwanda Forensic Institute requesting the Institute to verify about the veracity of the auction advertisement in IGIHE.COM. The investigation revealed that sole advert of 02nd July 2024 was published in the newspaper, and such a version concurs with the judgment of High Commercial Court on the appealed case whereby it held that the second and the third advertisements of the auction have not been served to POSADA Plus Ltd, adding that the notices service could not be possible since the notices never existed. He therefore argues that after the adjournment of the first auction, the receiver never bothered to advertise the auction within the 24 hours’ time limit as it is provided under article 253 of the Law Nº 22/2018, again confirmed by articles 4 and 13 of the Ministerial order n0 005/MoJ/AG, and emphasized by article 2 of Instructions of the Registrar General n0 002/AG/2021. He also argued that the auction notices that Mukamurenzi Annet considered as notifications to POSADA Plus Ltd contain no details of the creditor, neither do they indicate the debtor nor the photographs of the auctioned property, and the appellant can rebut such a fact, neither can they highlight the defects of the appealed judgement especially on the ruling about the violation of the provisions of article 10 of the aforesaid Ministerial order n0 005/MoJ/AG/2021.

Counsel Gahamanyi Justin also argued that the receiver’s defence according to which she allegedly wrote to POSADA Plus Ltd requesting for the company’s email address for a linkage into the Online Titles Enforcement Platform should not be upheld, especially due to fact that the alleged letter was not only handed to the wrong person but also was unlawfully served. It is therefore clear that the letter was handed before issuing the auction terms and conditions, and anyone might wonder about which auction POSADA Pls Ltd was required to be linked to.

With regard to the appeal made by Uwineza Angelique, POSADA Plus Ltd’s Counsel argued that her appeal is unfounded, adding that in the appealed judgement, the court made it all clear and it explained all about the importance of advertising the auction, and the benefits of notifying the property owner with the auction notices, which includes the mortgagor’s right of finding best offering bidders.However Uwineza Angelique did not comply with it because she did not notify POSADA Plus Ltd of the auction notices, and when she failed to lawfully post the notices at the recommended places, just as it has been explained as far as Mukamurenzi Annet’s appeal is concerned.

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Concerning the submissions by Uwineza Angelique, the court examined the grounds that had not been considered before, The Counsel of POSADA Plus Ltd stated that that was not true because the court determined the issues related to the fact that the auction was unlawfully advertised and the court clearly explained that the Instructions of the Registrar General never supersede laws, but they supplement them. DETERMINATION OF THE COURT

The point of disagreement on this issue consists of determining whether the receiver had to notify POSADA Plus Ltd as the owner of the mortgaged property registered under UPI: 1/03/05/04/1106, with the auction notices. The appellants argued that mortgages are registered with the Office of Registrar General in accordance with special formalities as defined by the Instructions of the Registrar General of 12/05/2020 relating to management, lease, auction and mortgage acquisition, arguing that based on article 29 of the foregoing Instructions pertaining to the advertisement of the auction of the mortgage, it is quite clear that the receiver had not notify POSADA Plus Ltd of the auction notices; while POSADA Plus Ltd argued that such mortgages are governed by article 253 of the Law n° 22/2018 of the 29/04/2018 relating to civil, commercial, labor and administrative procedure together with article 10 of the Ministerial order n° 005/MoJ/AG/2021 of 07/06/2021, and then confirmed by article 2 of the Instructions of the Registrar General n° 002/2021/ORG of the 29/06/2021. In case the Court finds that the receiver had to notify the property’s owner with the auction notices, the court will determine whether it was done lawfully.

Article 2, paragraphs 1 and 2 of Law n° 13/2010 of 07/05/2010 modifying and completing Law n° 10/2009 of 14/05/2009 relating to mortgages provides as follows: “The mortgage contract shall contain clauses that grant the mortgagee the power to manage, lease, sell or take over the mortgage in case of the mortgagor’s default. The mortgage contract shall also specify the time, place and terms of sale and the procedure to be followed in case of default. Where the mortgagor is in default, the mortgagee shall notify the mortgagor in writing of his/her choice to use one of the remedies specified in the preceding paragraph and transmit a copy thereof to the Registrar General”.

Article 3 (3) of the same Law relating to the sale of mortgages provides that “the Registrar General shall prepare instructions governing the auction sale of the mortgage and other remedies specified under paragraph one of article 2 of this Law”.

Article 1 of the Instructions of the Registrar General n° 001/2020/ORG of 12/05/2020 relating to management, lease, sale and mortgage acquisition as modified and updated, provides that the instructions establish modalities of management, lease, sale and takeover of the mortgage in case of the mortgagor’ default of payment.

The court finds that all the above mentioned provisions read together, the issues pertaining to mortgages, repayment default remedies, sale and takeover of the mortgaged property in case of default are all governed by the above mentioned law of mortgages together with the aforesaid Instructions of the Registrar General for application concerning the management, lease, sale or acquisition of the mortgage. Particularly, matters pertaining to the sale of mortgages which

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constitute case at hand, those instructions contain different provisions pertaining to the publication of the auction, elements of the auction notice, the auction procedures and many more.

The court finds that, based on all the above provided clarifications and the principle of precedence of a special law over a general law ( Specialia generalibus derogant), such special laws are better placed for indicating whether the sale of a mortgage registered with the Registrar General has been lawfully conducted; and not the provisions of article 253 of the Law n° 22/2018 of 29/04/2018 relating to civil, commercial, labor and administrative procedure; which though related to the publication of the auction, the law that contains it concerns the judicial procedure in general, particularly the chapter of execution of judgements. It is therefore clear that its provisions cannot take precedence for interpreting issues pertaining to the sale of mortgages recorded in the Books of the Registrar General over the existing special legislations.

Article 26 of the above mentioned Instructions of Registrar General N° 001/2020/ORG of the 12/05/2020 relating to management, lease, auction and acquisition of the mortgage as modified todate provides that the receiver prepares the mortgage auction terms and conditions which include at least the following items: the number of the mortgaged property, the location of the mortgaged property, the surface area of the mortgaged property, the honest description of the mortgaged property, the actual market value of the mortgaged property determined by a certified real estate valuator, the date and time of the auction, location of the auction, the schedule of subsequent auction dates in the event of postponement, the details of the bank account to be used for depositing the proceeds of the auction, the debts payment priority order, any other related information the receiver deems necessary.

Article 28 of the Instructions of the Registrar General provides that at least ten (10) days before the auction date, the receiver notifies both the mortgagee and the mortgagor of the auction terms and conditions and reserves a copy thereof to the Registrar General and the owner of the mortgaged property, when the latter is different from the debtor; while article 27 of the very Instructions provides that auction terms and conditions are accompanied by a copy of a certificate to auction the mortgage notified to the owner of the mortgaged property when the latter is not at the same time the mortgagor, there must also be a report on the property valuation done at the time the property is placed under receivership, and made by a certified real property valuator and notified to the mortgagor and the owner of the mortgaged property when the latter is not at the same time the mortgagor. Article 24 of the same Instructions provides that the certificate to auction the mortgage shall include the details about the mortgagor, description of the mortgage, and the auctioneer just as it is stipulated under article 24 of the Instructions of the Registrar General.

It is article 29 of the aforesaid Instructions n0 001/2020/ORG of 12/05/2020 of the Registrar General relating to management, lease, auction and mortgage acquisition that provides about the publication of the auction, and it provides as follows: “at least ten (10) days before the auction date, the receiver advertises the auction on the radio or television and in one of the print or online newspaper operating in Rwanda. These days are counted from the day following the date of the publication of the advert, and the auction date must be included”.

The court finds that, looking at the provisions of the aforesaid Instructions of the Registrar General, nothing shows that the receiver must serve the owner of the property with the auction notices. All the related articles provide for is that the property owner must be notified of the auction

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terms and conditions, which include the schedule of the auction dates just in case of adjournment (see article 26); the provisions also clarify that the auction must be published as per the outlay of article 29. Considering all the above provided elucidations, the receiver had no mandate of serving POSADA Plus Ltd, the owner of the mortgaged property, with the auction notices. Therefore, it is no longer necessary to examine whether this was done and how it was done.

The arguments put forward by POSADA Plus Ltd alleging the unlawful posting of the auction notices at the Cell Office premises and publish them in IGIHE.Com, were conducted unlawfully. Not only such allegations have never been raised and examined along the appealed judgement, but also they were never appealed against before this court; since the appeal has been jointly filed by Mukamurenzi Annet, Uwineza Angelique and Equity Bank Rwanda Plc., and they appealed about POSADA Plus Ltd.’s notification of the auction notices, while POSADA Plus Ltd lodged no appeal before this court.

Based on all the above provided elucidations, the appeal lodged by Mukamurenzi Annet, Uwineza Angelique and Equity Bank Rwanda, has merit. - Whether the legal costs and the advocate fee requested by the parties are relevant.

Uwineza Angelique prayed the court to order POSADA Plus Ltd to pay her 3,000,000 Rwf for both legal costs and the advocate fee since she had to hire lawyers for three instances, starting from the Commercial Court up to this level. EQUITY BANK RWANDA Plc also prayed the court to order POSADA Plus Ltd to pay them 500,000 Rwf for the advocate fee at this level , and 500,000 Rwf for the previous instance. DETERMINATION OF THE COURT

Article 111 of the Law n° 22/2018 of 29/04/2018 relating to civil, commercial, labor and administrative procedure provides the following: “the claim for courtroom representation is incidental to the principal claim, and it seeks repayment of the incurred case related expenses. The cost claim can be adjudicated at the same time with the principal claim, but it can also be admitted and adjudicated even when the principal claim is not”.

The court finds that Uwineza Angelique and Equity Bank Rwanda Plc lodged the appeal before this court, and just as it has been above explained, their appeal has merit. Therefore, looking at the provision of the aforesaid article 111, POSADA Plus Ltd must refund them for all the legal costs incurred, and the court, at its discretion, awards them each 1,000,000 Rwf for the advocate fee, and for Consel Uwineza Angelique and Equity Bank Rwanda Plc., there must an additional amount of 600, 000 Rwf for legal costs because she requested it. III. DECISION OF THE COURT

Holds that the appeal lodged by Mukamurenzi Annet, Uwineza Angelique and Equity Bank Rwanda PLC, has merit.

Holds that the judgment RCOMA 00577/2024/HCC is fully overturned.

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Holds that the public auction of 9 August 2024 conducted on the property registered under UPI: 1/03/05/04/1106, is still valid.

Orders POSADA Plus Ltd to pay Uwineza Angelique one million Rwanda francs (1,000,000 FRW) for the advocate fee and six hundred thousand (600,000 FRW) for the incurred legal costs.

Orders POSADA Plus Ltd to pay Equity Bank Rwanda Plc one million Rwanda francs (1,000,000 FRW) for courtroom representation costs.

Rules that the deposited court fees equal the costs incurred in this case.