NZAYISENGA v. MUHOZA

NZAYISENGA v. MUHOZA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2011-09-09 - Case/document no.: RCOMA 0044/10/CS - Collection: Supreme Court

Text

Page 1

NZAYISENGA v. MUHOZA [Rwanda SUPREME COURT – 2011SC – RCOMA 0044/10/CS (Mugenzi, P.J., Mukamulisa and Rugabirwa J.) September, 9th 2011] Commercial law – Inexecution contract of lease contract of plot– The claim file by someone who does not sign to the contract, it hasn’t been told that the claim file by someone who does not have competence to do – It hasn’t been a reason for not receiving the claim . Law of July 30,1888 instituting the book of civil law related to contracts and contractual obligations, art.49 , Lease contract of plot between NZAYISENGA and MUHOZA of 14/07/1998 in its article 4 and 6. Commercial laws –– One party to the contract cannot refuse to pay saying that the contract was cancelled. Facts: The two parties (appellant and respondent) signed a contract of lease the plot to setting up a garage on 14/07/1998. The owner of the plot was dead but he has inherited by the son of respondent who represented him into the case because he was still young (mineur). The appellant did not honor the contract, the respondent also came to accuse him into the court asking the payment of his money from the rent of the plot, including related interests equal to rwf3.806.000, of 76months for 60.000 each months as agreed in the contract. Hearing held on 05/03/2010, the court odered the appellant to pay the inherited rwf 9.026.000 and rwf 902.600 of interests and rwf1.000.000 court

fees and advocate fees. The appellant appealed into the Supreme Court saying that the the case should not be received since it has been submitted by someone incompetent. Held: 1.The fact of non appearance of inherited party into the case was related to the fact that he was still young (mineur), the reason why he was represented by his father, assisting his son as it appear into the contract. The fact that the owner of the plot does not appear into the contract is not an issue because he was not partis into the contract. So the court was in good and right way in receiving this case.

2. The appellant didn’t show the issues affecting his interest into the parcel if there was someone who was building in a house, since this was not sent by the other party to the contract, which means that the contract was not cancelled, but there has been a violation of contract by the appelant, he has to pay all money and related interests. The appellant has to give damages relating to that loss he had accounted to the rate of 10% of the total amount in the following terms: (rwf3.806.000 + 4.570.000) x 10 % = 837.600, and1.000.000 court fees and advocate fees, the total is rwf3.806.000 + 4.570.000 + 837.600 + 1.000.000 = 10.213.600 The appeal has no merit. The appealed judgment remains unchanged. The court fees paid by the appellant.

Page 2

Statutes and statutory instruments referred to: Law of July 30,1888 instituting the book of civil law related to contracts and contractual obligations, art.49 , Lease contract of plot between NZAYISENGA and MUHOZA of 14/07/1998 in its article 4 and 6. No Cases referred to: Judgment I.THE BRIEF BACKGROUND OF THE CASE [1] On 14/07/1998, Vénuste NZAYISENGA signed a contract with Apollinaire MUSHINZIMANA representing her son Nicolas MUHOZA the contract of parcel n° 1415 renting, located in Kabasengerezi cell, Muhima sector, Kigali city. Nicolas MUHOZA inherited entire property of Cleophas ABABONA including that parcel. Vénuste NZAYISENGA was occupying that parcel where he had a garage. [2] Nicolas MUHOZA assisted by Me Diane HAGUMA, accused NZAYISENGA into the Commercial High Court, asking him to pay renting money for the months he had not paid and related interest. The hearing held on 05/03/2010, the court ordered NZAYISENGA to give the Cléophas’s inherited who is Nicolas MUHOZA the money equal to rwf 9.026.000 of renting and rwf 902.600 of interest and rwf 1.000.000 of court fees and honorary for Advocate. [3] NZAYISENGA appealed into the Supreme Court saying that the case of Nicolas MUHOZA could not be receive into the court because he submitted as the representative of Cléophas inherited, without any competence. As he said if received, he should not pay that money because he

had been expulsed from that parcel. The party assisting MUHOZA said that the money that NZAYISENGA has to pay include renting money and related interests because he did not honor the contract. [4] Public and substantial hearing held on 12/07/2011, Vénuste NZAYISENGA assisted by Me Jean Baptiste NIYIBIZI, and Nicolas MUHOZA assisted by Me Diane HAGUMA. II. LEGAL ISSUES OF THE CASE AND ITS ANALYSIS 1. To know if the case of Nicolas MUHOZA could be received [5] The Advocate of NZAYISENGA says that the Commercial High Court could not receive the case submitted by MUHOZA because it was done illegally, he didn’t sign on that contract of renting parcel n° 1415 on 14/07/1998, but that contract held NZAYISENGA between MUSHINZIMANA, assisted his son MUHOZA. [6] The Advocate of MUHOZA says that the case should be received because he had submitted as ABABONA’s inherited.

Page 3

[7] The court found on one side, the fact that MUHOZA does not appear into the contract of 14/07/1998, is the fact that he was still young (mineur), the reason why in that contract he was assisted by his father MUSHINZIMANA as it stated in the contract. [8] The court found in other side, the Advocate of NZAYISENGA, into the contract submitted into the court jointly with the file, admitted that the other party into the contract was assisting the ABABONA’s inherited who was still young at that time. [9] The court found that the fact that ABABONA did not appear into that contract, has no reason because he wasn’t a party to the contract, his property became the property of MUHOZA assisted by his father, so NZAYISENGA hasn’t been able to show the way the other party had no competence to assist his son.

2. To know if the contract was cancelled because the parcel has been occuped [10] The Advocate of NZAYISENGA says that the contract signed between MUSHIZIMANA who was assisting his son MUHOZA was cancelled in 2002 because Yussuf MUDAHERANWA constructed into that parcel a house of 4 floors, and the parcel was given to him by the competent authorities, he now found any reason for him to pay the money for rent and related intrests. [11] He says that MUHOZA had asked rwf 3.806.000, he should deduct rwf1.200.000 of the renting fees that has been paid before, and remains rwf 2.606.000 without interests because he hasn’t been notified of the cancellation of contract. [12] He asked that MUHOZA has to pay rwf 1.000.000 of court fees, advocate fees and rwf3.000.000 of damages. [13] The Advocate of MUHOZA says that the renting contract hasn’t been cancelled as NZAYISENGA said, and Yussuf MUDAHERANWA had no house builded into the parcel and his appeal has no merit. [14] He says that NZAYISENGA should not be notified but he went himself without notifying the owner of the parcel, which means that the damages have no merit. [15] The article 4 of that contract of parcel renting of 14/07/1998, between NZAYISENGA and MUSHIZIMANA assisting his son MUHOZA, stated that “the price of renting is rwf60.000 paid starting on 5 of each month”, article 6 stated that “the cancellation of the contract has

to be nitified to other party one month before its cancellation”. [16] The court found that NZAYISENGA did not show if he was expulsed into the parcel if MUDAHERANWA was starting to build in a house, which is evident that the contract hasn’t been cancelled as NZAYISENGA said, but it is evident that NZAYISENGA did not honor the contract, especially in its articles above mentioned, and has to pay all money of renting. [17] Regarding all money for renting, the court found that NZAYISENGA has to give MUHOZA the money accounted until 05/03/2010, as ordered by the high court, but correct the number of months accounted by that court which are 76 and 5 days, instead of being 87, so

Page 4

NZAYISENGA has to pay to MUHOZA rwf 3.806.000 interest for renting not paid until 2003 and rwf4.570.000 of those unpaid 76 months. [18] The court found that the rwf1.200.000 hasn’t to be deducted into rwf3.806.000 as NZAYISENGA said, because MUHOZA has already deducted into requested amount. [19] Regarding damages, the court found that as the previous judge said, NZAYISENGA Vénuste has to give MUHOZA damages for loss accounted at 10% of the whole amount following the article 49 of civil code of laws, so NZAYISENGA has to pay to MUHOZA damages accounted in the following terms : (rwf3.806.000 + rwf4.570.000) x 10 % = rwf837.600. [20] The court found also that NZAYISENGA has to give MUHOZA rwf1.000.000 of court fees and Advocate fees as the previous court said. [21] The court found that NZAYISENGA has to pay to MUHOZA the money equal to rwf3.806.000 + rwf4.570.000 + rwf837.600 + rwf1.000.000= rwf10.213.600 as explained above. [22] The court found that NZAYISENGA will not pay the court fees, Advocate fees and damages. III. THE DECISION OF THE COURT [23] Accept to receive the appeal of Vénuste NZAYISENGA because it was submitted in conformity with the law ; [24] Decides that appeal has no merit; [25] Says that the judgment RCOM 0074/09/2010 rendered by the Commercial High Court on 05/03/2010 not changed, a part from figure accounted; [26] Orders Vénuste NZAYISENGA to give Nicolas

MUHOZA damages equal to rwf10.213.600, in case of default of payment in 1 month, they will be drawn from its properties by the public force. [27] Orders to pay 4 % equal to rwf 408.544 of proletary fees; in case of default of payment in 15 days, they will be drawn from its properties by the public force. [28] Orders to pay court fees rwf 28.250 including that accounted by the Commercial High Court, in case of default of payment in 15 days, they will be drawn from its properties by the public focre.