Case Number APPEAL NO. 1 OF 2015

The Appellant sued the Respondent for the actions of the Kigali City Abandoned Property Management Commission which in 2013 demanded that tenants in the Appellant’s premises, UTC Mall, remit their monthly rentals to the Commission. This forceful diversion of rent payments affected the Appellant’s ability to meet its mortgage obligations with the Bank of Kigali resulting in financial loss. Despite complaints made to the National Ombudsman, the Prosecutor General, the Governor of Kigali City, the Mayor of Nyarugenge, and the President of the Commission, no corrective action was taken. In its Reference, the Appellant averred that the appropriation of UTC Mall contravened the EAC Treaty and sought orders restraining the Respondent from interfering with the management of the property, damages incurred and costs.

In their preliminary objection, the Respondent alleged that: the claim was filed out of time; the Court lacked jurisdiction to adjudicate the case; and that the Respondent was wrongly sued for the actions of the Commission which had distinct legal personality under Rwandan law. They annexed a letter from the Commission to tenants of the Appellant dated 21st October, 2013 to their submissions and not to the Reference or to the Replying Affidavit.

The Trial Court found that: the Reference was properly instituted; the case was not time barred; and that the Respondent was responsible for the Commission’s misconduct. However, the Trial Court further states that: it had no jurisdiction to determine whether the Commission’s actions contravened Rwanda’s internal laws; and since this had not been proven, it could not draw a conclusion that due process had been violated, or whether the principles enshrined in Articles 6 (d) and 7 (2) had been breached. The Appellant had not established a Treaty violation attributable to the Respondent;

On appeal, the Appellant submitted that the Trial Court erred in law by holding that: the Abandoned Property Management Commission was not a de jure organ of the State of Rwanda; that is actions could not be attributed to the State of Rwanda; and that no Treaty violation had been established. The Appellant averred that the internationally wrongful actions of the State of Rwanda gave rise to new legal consequences/relations as between it and the Appellant.

In their Cross- Appeal, the Respondent claimed that: they were not liable of the actions of the Kigali City Abandoned Property Management Commission and the takeover of UTC mall complied with Rwandan law. They sought a reversal of the Trial Court’s findings.
During the appeal, the Appellate Division observed procedural anomalies in the Record of Appeal and addressed these in its judgment without delving into the merits of the appeal.

Date filed
KeywordAffidavit , Annexures , Factual evidence , Inherent powers , Procedural irregularities
Treaty ArticleArticle 27 , Article 30 , Article 5 , Article 6 , Article 8 , Articles of EAC Treaty , Rule 1 , Rule 24 , Rule 30 , Rule 94 , Rules of Procedure 2013

First Instance Judgment

VerdictIn the instant case, the Reference largely gravitated around issues of State responsibility for the conduct of decentralised or devolved governance entities.  Those issues are of great importance to the Community and Partner States, and have not previously been adjudicated before this Court. Conclusion In the final result, we do hereby dismiss the Reference and order each Party to bear its own costs. It is so ordered.
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Date deliveredNovember 27, 2014

Appeal Judgment

  1. It is trite law that pleadings in Court, whether in the form of Reference, Response to the Reference, Motion on Notice, Statement of Claim or by whatever other name called, are not evidence. They are averments the proof of which is submitted to the trier of fact. Submissions are not evidence and any annextures to a document, unless the document is an affidavit and they are annexed thereto, or the same are produced at the trial as exhibits, are not evidence.
  2. Evidence is the means by which averments are proved or disproved. Proof is essential unless the matter is admitted, or judicial notice is be taken, or an applicable presumption (rebuttable or irrebuttable) in favour of the matter averred, or if the burden of proof by law shifted to the adverse party; or an estoppel operates to exclude proof of such matter.
  3. The proof of a matter may take the form of testimonial evidence (oral or affidavit), documents produced in Court, or things (real evidence). Neither the Reference nor the Response were substantiated by evidence as to matters of fact averred. Whereas both Counsel for the parties and the Trial Court expected the Reference to be determined on the basis of application of affidavit evidence, the Appellant did not comply with Rule 24 (d) of the Court’s Rules which requires that a Statement of Reference specify the nature of evidence in support of the claim. There was no affidavit in support of the Reference.
  4. Although the Respondent’s Response was supported by an affidavit of the Attorney General of Rwanda, the affidavit contained no annextures thus the Respondent did not comply with Rule 30 (c) of the Rules which requires a response to state the nature of the evidence in support. Hence the Trial Court proceeded with the trial on the basis of written submissions which were not founded on any admissible evidence.
  5. The trial and adjudication of the Reference without factual evidence occasioned a grave injustice to both parties. Hence the Court remitted the Reference back to the Trial Court for consideration de novo by invoking its inherent power in Rule 1(2) of the Rules of the Court.
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Date deliveredNovember 20, 2015