RE VALOIS JEAN FELIX

# RE VALOIS JEAN FELIX

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2023-04-24 - Case/document no.: RC 00001/2022/CA - Collection: Court of Appeal

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RE VALOIS JEAN FELIX [Rwanda COURT OF APPEAL-RC 00001/2022/CA (Rukundakuvuga P.J.) 24 April 2023 Civil Procedure – Disqualification of a judge – Summary procedure – The fact that a judge heard a claim under the summary procedure does not disqualify him/her from hearing the principal claim. Facts: This case originates from the case RC 00001/2022/CA opposing Valois Jean Felix and his co-litigants to Dusabe Fazil; the lawyer of Valois Jean Felix applied for the disqualification of Judge Kaliwabo, one of the judges composing the trial bench. He argues that he applied for his disqualification because he heard the summary procedure RC 00005/2022/CA, incidental to the principal claim RC 00001/2022/CA. Therefore, they applied for the disqualification of Judge Kaliwabo from hearing the principal claim. The Court of Appeal held that the subject-matter for the summary procedure is different from the subject-matter of the principal claim, and the judge adjudicating it is prohibited to make an opinion that can encroach on the principal claim. Therefore, it held that the fact that a judge has heard an urgent claim under a summary procedure cannot be interpreted as if he/she once intervened in the case as a judge, a mediator, a prosecutor, a judicial police officer, a party, a witness, an arbitrator, an interpreter, an expert or as a public servant as the law provides; more so that the subject-matters for both claims are not the same, and the hearing on the claim under summary procedure has no effect on the principal claim. Therefore, hearing the urgent claim does not constitute a ground for the judge’s disqualification. The Court of Appeal decided to replace the disqualified judge by another for the sake of reassuring the parties. Held: The fact that a judge heard a claim under summary procedure does not disqualify him/her from hearing the principal claim. Therefore, the fact that the subject-matters for both claims are different, cannot encroach on the ruling of the principal claim. The application for the judge’s disqualification lacks merit. For reassuring the party, the disqualified judge can be replaced. The statutes referred to: Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, articles 106, 60; 103, 60 and 185 No cases referred to. Judgment I. BACKGROUND OF THE CASE

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In the hearing of 05/04/2023 of the case RC 00001/2022/CA opposing Valois Jean Felix, Valois Jean Paul, Valois Marie Rose, Valois Jean Pierre and Valois Jean Marie to Dusabe Fazil; Counsel Abasa Fazili assisting Valois Jean Felix applied for the disqualification of Judge Kaliwabo Charles, one of the judges composing the bench hearing the case. He explains that the disqualification ground is that Judge Kaliwabo Charles heard the urgent claim RC 00005/2022/CA, which is incidental to the principal case RC 00001/2022/CA ; he relies on the article 103, paragraph of the law relating to the civil, commercial, labour and administrative procedure.

The case on the Judge’s disqualification was heard by the Judges’ Council on 21/04/2023 and the Council examined whether a judge who heard the urgent claim under summary procredure should be disqualified from hearing the principal claim. II. ANALYSIS OF THE DISQUALIFICATION GROUND

Counsel Abasa Fazili assisting Valois Jean Felix, submits that, upon the request of his client, he seeks for the disqualification of Judge Kaliwabo Charles from the case RC 00001/2022/CA arguing that he is the very judge who heard Valois Jean Felix in the case RC 00005/2022/CA, incidental to the case RC 00001/2022/CA; such ground is corroborated by the provision of the article 103, paragraph 6 of the law relating to the civil, commercial, labour and administrative procedure. He also prays the Court to consider his client’s explanations and replace Judge Kaliwabo Charles from the hearing of the case RC 00001/2022/CA. DETERMINATION OF THE COURT

Article 103, 6o of the Law relating to the civil, commercial, labour and administrative procedure provides that a judge can be disqualified if he/she once intervened in the case as a judge, a mediator, a prosecutor, a judicial police officer, a party, a witness, an arbitrator, an interpreter, an expert or as a public servant.

The above article denotes that there should have been the same case at different times (mostly at the first and appeal levels) and the judge under disqualification should have heard such case. For a case to be considered the same, it must be about the same subjet-matter, and between the same litigants. It is evident that when one requirement is not met, the case is no longer the same. Therefore, the provision of the above mentioned article does not apply to the judge for whom the disqualification is applied.

As per the provision of article 185 of the Law relating to the civil, commercial, labour and adminstrative procedure, a claim under summary procedure seeks an interim ruling on a matter which requires an urgent resolution before hearing the principal claim. », whereas article 186 of the same Law provides that « the summary procedure judge decides by way of orders, but without prejudicing the merits of the principal suit »

Looking at the provisions of these two articles, it is so clear that the subject-matter of the urgent claim differs from the litigation matter on the principal claim, it is also clear that the judge hearing the urgent claim is restricted from addressing on the principal claim.

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The Court finds that the fact that a judge hearing the principal claim, had as well heard its incidental urgent claim under summary procedure cannot be taken for the provision of article 103, 60, as the subject-matters for both claims are not the same, and therefore it cannot encroach on the ruling of the principal claim ; in other words, it acnnot be a ground for the judge’s disqualification as above expounded.

For those reasons, the Court finds that the grounds provided by Valois Jean Felix for disqualifying Judge Kaliwabo Charles from the hearing bench of the case RC 00001/2022/CA are not material enough for the judge’s disqualification as they are unfounded. However, for the sake of reassuring the party for this particular issue, the Court opts for replacing him by another. III. DECISION OF THE COURT

Holds that the application by Valois Jean Felix for the judge’s disqualifcation is unfounded ;

Orders that Jugde Kaliwabo Charles is replaced by another judge in the bench hearing the case RC 00001/2022/CA due to the above explained reasons.