LAW OF PROCEDURES MODULE CCLAP ( Continued) · 2019. 1. 2. · OUTLINE 2 Wednesday, 02 January 2019...

By Me Lauret Shenge (

L.LB;L.LM; PGD )

School of Law/ UR

LAW OF PROCEDURES MODULE

CCLAP ( Continued)

OUTLINE

Wednesday, 02 January 20192

Understanding :

TITLE IV. Procedures for appeal

opposition, appeal, opposition by third party and petition for review

Ordinary recourses of appeal v extraordinary recourses of appeal

Subdivision : Reformation proceedings and retraction proceedings

Chapter 14. Ordinary recourses of appeal

Opposition, art 142 - 146 ( Definition; Characters,

significance and effect of the opposition ; Forms and time limit of

the opposition )

Appeal , art 147-160 (General remarks; Time limit, hearing

and make up (‘forme’) of appeal ; Effects of appeal ( staying

effect and devolutionary effect) ;


Chapter 15. Extraordinary recourses of appealOpposition by third party, art 161-168 (Defintion;

Principal opposition by third party; incidental opposition by third party

Petition for review, art 169 - 176 (Defintion; Cases covered by art. 170 CCLAP & art. 81 SC (Common review cases (art. 170 CCLAP) &Cases of review due to injustice (art. 81 SC) ;Time limit and proceedings ; New procedure for case review due to injustice

TITLE V. COURT EXPENSES

Chapter 16. Costs

General Concepts

Types of expenses (article 271 CCLAP) (Expenses of procedural acts ; acts of investigation)

Chapter 17. Expenses’ exemptions

Government (article270, 2o CCLAP) & PublicProsecution (art. 10 al.2 Min.Order

Legal assistance

TITLEVII. ENFORCEMENT OF JUDGEMENTS

Chapter 18. Enforcement against individuals and privatelegal entities

Seizures and comparable concepts (Seizure to preventsale and distraint for sale « Saisie conservatoire »



Fine penalty imposed on a unit of time basis(‘astreinte’)

Provisional enforcement

Enforceable decision or deed, and Enforcement(article 247 CCLAP)

Non distrainable assets (article 216 and 259CCLAP)

Special) Seizure of Movables

Seizures to prevent sale

Distraints for Sale

Seizure of real estate (article 283 to 308 CCLAP

Chapter 19. Enforcement against public entities

Direct coercive means

Judgments in pecuniary matter

Decisions not being pecuniary

Means of pressure

Administrative fine penalty

Damages


TITLE IV. PROCEDURES FOR APPEAL

These are means by which litigants ask for a new

examination of their lawsuit, while supporting that the

decision obtained is vitiated with injustice or error.

They are 4: opposition, appeal, opposition by third

party and petition for review.

They are the only means by which a court order can

be attacked, whatever is the vice.

We distinguish:

… ordinary recourses of appeal …

… which are in theory always opened to litigants

… and have a staying effect (except when the judge

ordered provisional enforcement) Wednesday, 02 January 20197

… and extraordinary recourses of appeal …

… which are open for enumerated restrictive

cases.

They are used only if ordinary recourses of

appeal are exhausted.

Recourses of appeal are also subdivided in…

… reformation proceedings:

… i.e. by a given recourse, a litigant applies to a

court hierarchically higher than the court having

issued the challenged decision;

… for example: appeal.


and retraction proceedings :

… in this case, litigants come back before the court which

ruled previously;

… for example: opposition.

Concerning various recourses of appeal in administrative

dispute,

…the ordinary procedure (i.e. stated previously) applies.

Moreover, opposition by the State is not easily possible,

because the failure of the Administration is prevented by

various means (of communication inter alia


• Chapter 14. Ordinary recourses of appeal Opposition

Definition

Opposition is a recourse of appeal exerted against a judgement by default

by which a litigant asks the court which ruled to state again on the case

(article 142 -146 CCLAP).

The defendant lost the lawsuit without being defended; or defended

him/herself partially but did not finish the lawsuit (i.e. did not close

his/her pleas).

Characters, significance and effect of the opposition

Opposition is…

an ordinary recourse of appeal (i.e. in theory, it’s open to any failing

defendant)…

… and retraction proceeding, in the sense that…

… the lawsuit is brought back before the same court,

… with an aim of asking that the decision be retracted,

… and the parties keep same quality (plaintiff or defendant).



Opposition is excluded for the following cases (see art. 143, al.

2 CCLAP):

The defendant lets him/herself be judged a 2nd time by

default …

… after a 2nd or the last summons;

… after he/she exerted an opposition ("opposition on

opposition is not worth")

....or the judgment by default is already enforced


Forms and time limit of the opposition

Opposition takes the form …

of a written submission indicating serious and exceptional grounds justifying the failure

to appear and is formulated in the same way as filing any other claim (art 142 par 2

and 3)

The time limit of opposition is 15 days, from the day …

...of the judgment by default’s notification ) ( art 142 para 4)

Once opposition is admitted, parties remain with their original status ( art 144 para 2)

If the applicant aappears alone , the court makes its decision basing on the former

judgments and grounds of defense of the opposing party ( art 142 par 3)

When the applicant defaults to appear, the other party requests the confirmation of the

first judgment and the damages equivalent to the costs incurred in the second trial (art

142 para 4)

Effects

New judgment on the issues decided by default

The fact of quashing the contested judgment by a new

judgment ( art 145 CCLAP )

The staying effect by the period for filing opposition and the

exercise itself of opposition ( art 146 CCLAP) unless there is

a decision authorizing a provisional execution



Appeal

General remarks

It is a recourse of appeal by which a litigant carries the

lawsuit before another hierarchically higher court:

It is an ordinary recourse (in the sense that it is opened to

all litigants)

... and at the same time a reformation proceeding (it is

asked to reform the challenged decision).

Parties within appeal hearings can’t include any third person

to the lower degree lawsuit; they include rather:

… an appellant (or plaintiff in appeal) who must …

have been a party in the lower degree lawsuit, Art 147

CCLAP


… have an interest (i.e. to have been a looser at least on one point of the request)

… and not have given up the appeal (for example while agreeing to the judgement).

… and the respondent (or defendant in appeal) who is:

… any opponent of the appellant, previously in the lower degree lawsuit (principal

party or intervening party). Art 147 CCLAP

It should not be the litigant having been a looser with the appellant (for example, a

joint-debtor – in such case, a new judicial action is taken at a 1st degree – ‘action

récursoire’ – instead of appeal)

We distinguish…

… principal appeal (done by the appellant), Art 150 CCLAP

… from incidental appeal (in which the respondent lodge on his/her side, an appeal

about any point of the judicial action on which he/she lost –)


Time limit, hearing and make up (‘forme’) of appeal

And effects Time during which appeal cannot be lodged:

For a non final judgement or interlocutory judgement (‘jugement avant-dire-droit’),

appeal is impossible as long as the final judgment was not issued ( art 147 para 2)

For a judgment by default, appeal is inadmissible as a long as opposition is still

possible.

For a final and contradictory judgment, it is possible to lodge an appeal immediately

after the verdict.

Time during which appeal must be lodged:

For a principal appeal, the time limit is 1 month since verdict or notification

(according to the case) of the challenged judgement –

Incidental appeal or cross appeal is lodged within the defence submissions . The

appellant may seek for legal fees even if the principal appeal is not admitted (art 152

par 3)


Appeal implies a deposit of court fees and is formed by… ( art 150 CCLAP)

… an act initiating proceedings (in which is particularly indicated…

… identity of the parties,

… and the challenged judgement ; the appeal court ; the summary of facts; list of grievances from the judgement and other issues to be analyzed; motivation of each grievance and error committed and the way it should be modified basing on the law, evidence and claim to the court; motivation for additional claim if there is any

It is filed electronically or by presenting court submission to the court upon a written approval by the chief court registrar of the appellate court and send a copy to the court through available electronic means (art 20 CCLAP)

… Appeal made by some of the parties implies to summons all of them to appeal. Those who have not appealed can protect their interests and can even make incidental appeal ( art 153 CCLAP)

Concerning appeal hearings, refers to rules of ordinary procedure

Effects of appeal Returning to the former situation ( art 155 CCLAP) :Once the appeal is admitted ,

the case returns to the situation as it was before for the judgement as for the issues subjectmatter of appeal

Staying effect ( art 159 CCLAP) :

… the appeal suspends enforcement of the challenged judgement during the time period to exercise appeal and the appeal itself

… except in case of provisional enforcement


Devolutionary effect:

The judge of appeal is seized for the lawsuit in its points of law and fact

in the limit of the indicated subject matter. The court only decides on

the issues brought forth by the appellant and the respondent at the

appeal level ( art 156 CCLAP) ( Tantum devolutum, quantum

appelatum)

Effect on the appealed judgement ( art 157 CCLAP)

The appeal court may overrule the appealed judgement in all its clauses

or some of them; uphold the judgement or set aside the judgement

In principle, the appeal court tries the case in merits unless:

The appealed judgement was rendered by the court lacking

jurisdiction;

The court declared lack of jurisdiction whereas it had it;

There was irregularity in referring the matter to court;

The case is completely removed from the lower court;

In case the appeal court finds there was irregularity in seizing the

first instance or lack of jurisdiction , the appeal court indicates it

and quashes all decisions taken on the basis of this error and the

interested party may file a new claim;

… and judges of the appeal court cannot return the case to

another court,

…except in case …

The first instance had declared incompetent to receive and

judge the case whereas it had jurisdiction, the appeal court

hears the case and declares that it was in the competence of the

first instance court, declares the judgement void and refers it to

the same lower court for a new examination on the merit

without any payment of court fees

( Evocative effect of appeal)Wednesday, 02 January 201919


However, the judge must be limited to what was originally

judged:

Parties cannot form a new request (i.e. a claim stated for the

1st time at appeal level and ignored by the judge of the lower

court) – except for cases enumerated at art. 154, para. 1

CCLAP in case of seeking compensation or claim

constituting a defence to the principal action. Let’s avoid to

make any confusion with:

… new arguments/means (see art. 154, para. 3 CCLAP); ( new

argument or evidence not heard at the first instance)

… or additional requests (see art. 154, para. 2 CCLAP). ( may claim

interests , rent and other accessories got since the pronouncement of

the judgement and moral damages for the loss suffered


Chapter 15. Extraordinary recourses of appeal

They are exceptionally open to parties.

They do not have a staying effect.

Opposition by third party

Definition

Opposition by third party is a recourse of appeal opened to a

person, victim of a court judgement affecting his/her rights

with regard to which he /she was not party (article 161

CCLAP) . However , a spouse of a part and their children

are not concerned by this recourse of appeal when the

subject matter is the family property unless it is proven that

the default to notify them was due to fraud ( art 162 in fine)

… and the third person would like to make it be declared non

opposable and it concerns only issues challenged to be re-examined .

It concerns a court judgement on the merits and no longer subject

to appeal

Judgements by the Supreme Court and Court of Appeal are not

subject to third party opposition

If third party opposition concerns several parties , all of them are

summoned to the hearing ( art 163 CCLAP)



We distinguish 2 situations where a third person can be reached by a

decision of court:

… the third person is victim of a fraudulent agreement between 2

parties in a lawsuit (for example: the debtor of a husband in a

judgement of divorce with his wife, obtained by fraud)

… the third person could not make an intervention, and resorts to the

opposition by third party.

Opposition by third party doesn’t have a staying effect (except when the

suspension of the execution is ordered by the judge upon request of a

party – see art. 165 CCLAP) – it is admissible within a time limit of 2

months since the date on which the third person was informed (article

164 CCLAP).

Principal opposition by third party (article 165 CCLAP)

The third person acts, apart from any hanging lawsuit, to make the

judgement be declared non opposable.

It is a retraction proceeding:

… the case comes back before the court having issued the

challenged decision;

and this by an act initiating proceedings.

Incidental opposition by third party (art 166 CCLAP)

A litigant in an ongoing lawsuit can put forward against his/her

opponent, a judgement issued before:

… this opponent is a party in the lawsuit in progress…


… but third person in the lawsuit having led to the judgement

which the other party wants to put forward.

If the court in which the lawsuit in progress, finds there is no

relationship between two judgements , it continues the hearing. In the

contrary, the court suspends the hearing and wait for the third party

opposition judgement.

EFFECTS OF THIRD PARTY OPPOSITION

Devolutionary effect ( art 167 CCLAP)

The court seized examines only grounds that are prejudicial to the

applicant party

Note that the appeal against a judgement rendered by third party

opposition applies the same ways as any other judgement and is subject

to appeal only once


Petition for review

Definition

It is about recourse of appeal by which a litigant comes back

before the judge who ruled the contested judgement to ask him

to modify a decision issued by error.

It is a retraction proceeding in the sense that it is carried before the

court having issued the decision allegedly vitiated with error (but

the seat is otherwise made up – see art. 170 CCLAP).

It can also be a reformation proceeding when it’s brought before the

SC due to injustice on judgement from other courts (see art. 33

para. 2 and art. 81 SC)

This recourse of appeal is also known as extraordinary, in the sense

that:


However, in petition for review due to injustice , the 2018

Law determining jurisdiction of courts has brought

important changes :

The law stated about reasons to review a judgment due to

injustice ( see art 55 )

(i) Compelling evidence of corruption, favoritism or nepotism

That had effect to the judgment and that were unknown to the losing

party during the proceedings

(ii) Blatant disregard of legal provisions and the law by the judge

(iii) If the judgment cannot be executed as it was decided

The applicant who has not exhausted the other recourses of

appeal is not allowed to apply case review due to injustice unless

the injustice is identified by the Inspectorate General of Courts


Time limit to apply : art 56

A written application to the competent organ within 30

days of notification of the judgment

When the application is based on the impossibility to execute

the judgment due to the way it was decided, the time limit

may run from the date where the court bailiff has made a

statement therein.

Time limit for response art 57

The competent organ shall give the response in 3 months of

the filing of the application

Competent authority at first instance art 58

Administrative procedure: Application is made to the

President of the court higher than the one that rendered the

contested judgment


When the contested judgment is of the Court of Appeal, the

application is made to the President of the Supreme Court .

The decision taken after consideration of the alleged injustice

is final and not susceptible to appeal art 58 para 2

Consideration of cases of injustice art 59

When the President of the court seized finds there is such

injustice, he/she informs the President of supreme court applying

for review of the judgment

If the President finds no instance of injustice, he informs the

applicant thereof . If the applicant is not satisfied with the

decision, he/she may write to the Office of Ombudsman

requesting to consider the alleged injustice

If the Office of Ombudsman finds there is injustice, it informs the

President of the Supreme court in writing applying for review. In

the contrary, the Office of Ombudsman informs the applicantWednesday, 02 January 201929

The application to the Supreme Court should include a

report on the nature of the issue with supportive evidence

The Supreme court takes a decision basing on the report of

the Inspectorate General of courts

Review of judgment due to injustice by the

Inspectorate General of courts art 60

When it considers a judgment and finds there is injustice and that

no other remedies are possible, it makes a report thereof

containing facts evidencing such injustice and reasons justifying

the impossibility to apply other remedies

Note that for the cases where Office of Ombudsman has been

party it cannot be involved in examination of injustice


The injustice is examined by the court higher than the one

that rendered the judgment upon application of the

concerned party

When one of the parties is not satisfied by the decision taken,

he /she informs the Inspector General of courts to examine

the alleged injustice

When the Inspector General finds injustice in the judgment

he/she applies to the President of Supreme Court for review

Upon considering the report on injustice in a given

judgment, the President of the Supreme Court decides that

the case be reviewed and forwards it to the Chief Registrar to

fix the date for hearing or refers it to another court ( art 53,

para 2


The applicant seeking review of the case due to injustice is

exempted from payment of court fees

In case there is no injustice, the President of the Supreme

Court informs the Office of Ombudsman or the applicant

The hearing is done by either the Supreme Court or any

other court designated by the Supreme court in presence of

all parties


… it can be used only against a judgement having force of

res judicata (Article 172 CCLAP); i.e. a judgement having

exhausted ordinary recourses of appeal (see art. 81 para 2

SC);

… and that in cases enumerated at art. 170 CCLAP and

art. 81 SC.

It doesn’t have a suspensory effect (see art. 173 CCLAP).

Cases covered by art. 170 CCLAP & art. 81 SC

a. Common review cases (art. 170CCLAP)

The personal fraud, i.e. fraudulent schemes on behalf of a party in the lawsuit to

mislead the judge and bring him/her to rule in the desired sense.

The judgement has been issued on the basis of pieces of evidence, testimony or oaths by

after declared untrue (for example, in case of plea of forgery against an authentic act,

perjury, etc.)Wednesday, 02 January 201933

Since the time of rendering the judgement, there was a

discovery of decisive evidence of element proving injustice

in the judgement (they were for example hidden).

The judgement was issued basing on a criminal judgement

which was cancelled thereafter.

The judgement is based on a procedural act having been

accomplished in the name of a person who did not give

mandate of it or confirm what was done (see supra the

incident of disowning).


Time limit and proceedings

The time limit is 2 months since the day a cause of revision was

known (article 171, para.1 CCLAP)

If the litigant dies after being informed of a cause of revision,

but before the 2 months passing, the time limit is extended (12

more months) for heirs (see art. 171, para. 3 CCLAP).

If meanwhile, the litigant is struck by incapacity, the time limit

is suspended, and will be continued after capacity is covered

(see art. 171, para. 2 CCLAP)

The plaintiff in a petition for review must deposit for the

lawsuit costs (article 172 para 2 CCLAP)


The petition for review lawsuit begins with the examination of

admissibility: art 174 CCLAP

They must be interlocutory judgment on admissibility art 174

par 1 and in the contrary the contested judgment remains valid

art 174 para 2

After the admissibility test, substance examination follows:

If recourse is confirmed, the challenged judgement is cancelled

and replaced and no other petition for review is possible

except third party opposition or review due to injustice (see

art. 176 CCLAP).

36

TITLE VI. COURT EXPENSES

Justice is in theory free:

… litigants do not pay the judges – their salary is dealt with

by the government.

However, a lawsuit is not always carried without costs (it

incurs sometimes many expenses

The court expenses are varied:

… fixed fees, i.e. expenses price listed by the Minister

ofjustice (see art. 271 & 273 CCLAP and the Ministerial

Order of 11/02/2014 on court fees in CCLAP, from art. 6

to 10), themselves subdivided in:


…fees perceived on procedural acts/deeds (summons, non final

judgement, official report of audience or any proceedings act, record and

copy of judgement, etc.)

…and expense for varied proceedings acts (allowance, consultancy fees

for witnesses, transport fees for judges, etc.)

No more proportional tax.

We should not confuse court expenses and costs:

In theory, costs correspond to the part of the court expenses to be paid by

the litigant who lost the lawsuit.

Court expenses include all the expenditure incurred during a lawsuit (fixed

fees, proportional tax as well as other various expenditure (sometimes

inappropriate) incurred by a litigant – see frustrative expenses).

Frustrative expenses are those unnecessarily incurred which remain

supported by their author, even when he/she didn’t lose the lawsuit.

The proportional tax: according to the former CCLAP, in its art. 355, anyWednesday, 02 January 201938

sum or value allocated by the court during a lawsuit was taxed at a

rate of 4%

Chapter 16. Costs

General Concepts

Costs include:

…expenses of various procedural acts, consultancy fees, expenses

allocated to parties and witnesses, expenses for inspection of

premises.

Are excluded from the list, lawyer fees, damages granted to the

winner, his/her expenditure (for example: trips, expenses for

other legal acts) that the judge considers they are useless.

Costs are supported by the party who lost the lawsuit (see art. 273

CCLAP and the Ministerial Order above indicated):

This would be the plaintiff when his/her request was rejected…


… or the defendant, if he/she lost the lawsuit

Types of expenses (article 363 CCLAP)

Expenses of procedural acts

The Minister for justice determines and fixes their tariffs

(1000 rwf/page; see art. 10 Min. Order).

These expenses are guaranteed at the time of referral by a deposit

(concerned modes of referral are enumerated by art. 269

CCLAP ) .

If the plaintiff is a foreigner, it is necessary that the cautio

judicatum solvi (see art. 91, al. 1 CCLAP) should have been, at

the beginning of the


lawsuit, pleaded: contrary to a simple deposit, ‘cautio judicatum solvi’

guarantees the fixed fees and possibly damages.

Difference with expenses for acts of investigation (article 273

CCLAP)

It’s about, let’s recall it…

… allowances allocated to witnesses, experts and parties

… transport fees for judges, registrars and bailiffs

… expenses for seized assets care, etc.

Contrary to expenses of procedural acts/deeds determined by the

Minister of justice, expenses for acts of investigation are computed by

reference to various modalities or fixed in theory by the involved professional

associations


Chapter 17. Expenses’ exemptions

Government & Public Prosecution art 270 CCLAP

Are excluded for this exemption, other public entities:

… i.e., districts and public institutions with legal personality.

With regard to this exemption, the Government as well as

various central services placed under its hierarchical control

are involved.

Provinces, not having legal personality, are also represented

by the Government.

The Government and the Public Prosecution can thus neither

make deposit, nor be condemned at the expense.


Legal assistance

This concerns indigent people i.e. people who are unable to

exert their rights in justice because they are stripped (see art.

To be eligible,

… this person must present a certificate of indigence

delivered by the authority of the place of his/her domicile or

residence.

Then, his/her request for legal assistance must be introduced

before the president of the seized court.


Exemption (see art. 270 para . 2 CCLAP) concerns:

deposit and payment of costs;

… as well as delivery of any copy of the judgement.

TITLE VII. ENFORCEMENT OF JUDGEMENTS

Chapter 18. Enforcement against individuals and private

legal entities

A. Seizures and comparable concepts

Seizure to prevent sale and distraint for sale « Saisie

conservatoire » art 212 CCLAP

« Saisie définitive » ou « Saisie – Exécution » art 234 CCLAP


Seizure to prevent sale is a procedure of coercion which consists

in putting debtor’s assets in the hands of Justice so that

he/she couldn’t have them at his/her disposal or make them

disappear (see art. 212 CCLAP). Surety of property. The

claim is in the same form of procedure as summary

proceeding

Preventing the transfer of the immovable property before the

Registrar of land title or land officer in the sector or in the

district preventing the immovable property belonging to the

debtor art 213 CCLAP

However, if the debtor does not file a claim in court within 1

month from the date of application to prevent the transfer, it

becomes void


Seizure to prevent sale can be…

… general – see art. 215 CCLAP (when it relates to all

movables of the debtor – debt of money; furniture, debts in

hands of a third person – except those concerned with the

special seizure covered by provisions indicated in the

following point)

With a final judgement or enforcement order , any person

may request the court bailiff to seize the debtor’s property in

accordance with the law

It may be done also in a form of summary procedure when

the final judgement is not yet rendered but there is fear that

the movable property of the respondent would be

dissimulated or damaged. The owner of the seized property

loses all the power on it


The decision to seize indicates the management of the seized

property, the cost for management, the person to pay for it

and the person to be liable in case of damage

Unseizable movable property art 216

The portion of the movable property that would expose the

debtor in extreme poverty or be dependent on the community is

not allowed

necessary beddings and clothings of the distrainee and his / her

family

tools which are essential for the vital activity, profession, trade or

activity in the absence of which the distrainee and his / her family

cannot survive

two thirds (2/3) of the food required for the life and survival of

the distrainee and his / her family;


quota of the total remuneration declared unattachable by

labor laws and one third (1/3) of the pension of a worker

who does not have any other means of subsistence.

For real estates, it’s about the indigent person’s residence and

one fourth-hectare for land under cultivation. (see art. 259

CCLAP). However , this doesn’t apply to the property given

in security art 259 para 2 CCLAP

See the seizure procedure art 217

A seizure statement by a court bailiff that indicates the seized

property, its identification, location, the garnishee and the

guardian; a copy is given to the owner of the seized property

The bailiff seizes the property in the presence of the owner,

or cowner and the garnishee


Order to indicate the property for seizure art 218

The debtor indicates in writing to the court bailiff wherever

the property is located , its identification and quantity and

which property should be given priority for payment


Failure to do it in 24 hours starting from the time he is

requested to do so, the court bailiff seizes available property

and starts with any property while selling it

In case of dissimulation of property, the bailiff may request

the court in a form of ex parte application to order him/her to

indicate it and pay a fine of 5% of the dissimulated property

and damages and costs relating to the proceedings

Custodian of seized property art 219

Appointed by a bailiff, he/she is also given a copy of seizure

statement

The statement is signed or bear a fingerprint of the custodian or

reasons preventing him/her from signing


Prohibition to use the property or rent it on his/her benefit

and no one is allowed to prevent him/her from performing

his/her responsibilities

The owner of the seized property pays the custodian and

cannot exceed 1/1000 per day of the value of the seized

property

A distrainer, a guardian or any other person who steals,

diverts, uses , damages or distroys property knowing that it

has been seized, is liable either through civil proceedings or

criminal ones art 221

Different ways in which seizure may take end art

222

A creditor requesting the bailiff in writing signed also by the

debtor to lift the seizureWednesday, 02 January 201951

Voluntary payment by the debtor with a statement thereof

from the bailiff

The seized property auctioned for the payment of the

creditor

Ordered by the court

The owner of the seized property not concerned by the

judgment or any enforcement order may request in writing

the bailiff to lift voluntarily the seizure after showing the

proof that it belongs to him/her.

If in 24 hours nothing is done, he/she may request in a form

of ex parte application to lift the measure to seize without

prejudice to damages


Staff in charge of execution of judgments , their competences

and protection see art 224 and 225

Types of seizure and their execution ( Special

seizure)

Seizure of the property of the debtor in the hands of a

third party art 227 CCLAP

By a bailiff who seizes a movable property belonging to the debtor

but in the hands of a third person after showing him/her a

judgment, an enforcement order bearing an enforcement formula

Obligation to the third person to indicate in writing all debtor’s

property in his hands anywhere it is located together with its

identification


Seizure of the property of the debtor in the hands

of the GVT or non GVTal organizations or public

institution with legal personality art 228 CCLAP

The debtor ‘s property that is in the hands of the GVT, is seized in

the hands of a public institution that manages it and a notification

is made to the State Attorney

When the debtor’s property is in the hands of a non GVTal

organization or a public institution with legal personality, it is

seized in its hands with a notification to their representatives who

have to sign it

Seizure of recovered property art 229 CCLAP

It is a procedure opened to the owner of movable property held

by a third person to place it in the hands of the court to ensure its

preservation while waiting for getting it backWednesday, 02 January 201954

In case the creditor has the enforcement order , he may

request a court bailiff immediate execution

In the contrary, he requests a court bailiff to seize the

property and submits a claim to the nearest primary court in

48 hours to get full rights on the property. The claim is heard

in the same period as the summary procedure

If the final judgment approves the rights sought, the court

rejects the auction and orders the owner to recover the

property or order to restitute the property to its former

state

This kind of procedure applies at anytime the owner seeks to

recover his property be it stolen; lost; embezzled ; given to

another person without his consent; sold without being paid

or when a security is removed without his consentWednesday, 02 January 201955

Seizure of an itinerant’s property art 230 CCLAP

The creditor having an enforcement order has right to request a

court bailiff to seize the property in the itinerant debtor’s

possession when the latter does not reside in the district of the

creditor’s residence

If there is no enforcement order , the seizure is done by a bailiff

then a claim is filed by the creditor to the competent court within

48 hours

The seizure persists unless it is cancelled upon request from the

owner of the property

The final judgment on the principal claim turns the seizure into

distraint if the claimant wins the case


Seizure of a tenant’s movable property art 231

CCLAP

If the tenant of a house or land does not pay rent, the owner may

request the court bailiff to seize his/her property or other goods

belonging to him/her that is in the released house or land or

which were removed without consent

The same powers apply to the sublessor who does not get payment

from the sublessee

A claim must be filed to the competent court in 48 hours after

requesting the seizure

The seizure persists as long as it is not cancelled by the court on

the request of the owner of the property

The final judgment on the principal claim turns the seizure into

distraint if the claimant wins the case


Commercial seizure art 232 CCLAP

Any person in possession of a bill of exchange ; a promissory

note ; an unpaid cheque; a creditor whose right is based on

commercial transaction may request the bailiff the seizure

after having assessed the documents that state the unpaid debt

A claim to be filed to the competent court in 48 hours after

the seizure. The seizure persists as long as it is not cancelled

by the court upon request of the owner of the property

The final judgment changes the seizure into distraint. The

case is heard as a summary procedure

Seizure of immovable property belonging to several

owners art 233 CCLAP


The creditor seizes the court for its partition or sale

Not applicable to the property of spouses under the

community of property regime unless there was no mutual

consent on the causes that led to the seizure

Reasons provided for do not apply to the civil liability

A complaint aiming at partition or sale of the immovable

property owned by several joint owners is filed at the same

time as a complaint on the assessment of the value, the

appointment of the expert and his award.

The claim follows the procedure of the summary procedure

claim


On the other side, distraint for sale requires that the plaintiff

be provided with an enforceable deed: art 234 CCLAP

… thus, the final judgment issued after a seizure to prevent

sale can convert this one into distraint for sale.

Initially, the bailiff makes a summons to pay (with notification

of the final judgment) – see art. 245 CCLAP when the

enforcement order is issued

Then he/she carries out a surety of the immovable

property to avoid its diversion. This happens when the

voluntary execution has not been possible art 247 CCLAP. If

it is successful, the agreement is considered as an

enforcement order and is published on the Database of the

judgements enforced by the losing party or the bailiff art 247

in fineWednesday, 02 January 201960

For difference between the 2 kinds of seizure, see the

following 3 points.

Thus, the two kinds of seizure differ as for their objectives:

…the seizure to prevent sale is a measure of precaution and

safety – it doesn’t require an enforceable deed,

…whereas distraint for sale aims at liquidation of the

debtor’s assets – and requires that distrainer has an

enforceable deed.


They also differ as for their conditions:

… for seizure to prevent sale …,

… debt must be certain, liquid and due;

… there must be urgency and authorization of the judge,

… followed by writ of seizure.

… in case of distraint for sale, there must be …

… an enforceable deed (judgement or any suitable act),

.. a certain, liquid and due debt,

… and finally a notification, followed by preliminary

summons to pay and a writ of seizure.


They are finally distinguished as for the effects:

… in the 2 cases,

… the debtor doesn’t have any more seized assets at his/her

disposal,

… and there isn’t any priority right (‘droit de préférence’)

for the creditor.

Concerning seizure to prevent sale, the debtor remains in

possession of assets, but can’t go beyond:

… making acts of administration;

… or just about having fruits at his/her disposal.


Fine penalty imposed on a unit of time basis

(‘astreinte’)

It is about a decision to pay an amount of money, per day, week,

month or year of delay (see art. 184CCLAP) issued by the

judge against a recalcitrant debtor ( ADMINISTRATIVE

AUTHORITY), in order to bring him/her carry out his/her

obligation in kind.

The obligation can especially be justified when the decision of

the judge is against a legal public entity (see art. 181 to 184

CCLAP)

Provisional enforcement

The goal of a provisional enforcement is:

… to guarantee against risks of the pecuniary situation of the

debtor, Wednesday, 02 January 201964

… to avoid prejudice caused by a new extra time in a

litigation (see for example art. 238 CCLAP),

… or to foil effect of a dilatory recourse, aiming at

postponing enforcement.

Quid for field of application?

The validity of a provisional enforcement is appreciated

without appeal by the judge. This is because the order taken

by the judge is subject to provisional execution even if there

is a pending appeal

It is however automatically acquired, with regard to decisions

issued for example after a summary procedure (see art. 236

& 237 CCLAP).

It is not allowed in several matters relating to civil status (for


example: opposition or nullity of marriage), real estate,

court expenses (see art. 235 CCLAP).

Conditions:

To prevent a provisional enforcement (or even a seizure to

prevent sale), the debtor can deposit sufficient sum of money

which answers for the debt – this is named "cantonment";

see art. 239, 2o CCLAP.

Provisional enforcement is done at the creditor’s own risk:

i.e. a final court decision which cancels conclusions of an

already consumed provisional enforcement can order a

restitution …

… of the seized values,

… or even of damages if there were prejudice caused by the

provisional enforcement. Wednesday, 02 January 201966

The judge can also prevent similar situation while ordering,

prior to any provisional enforcement, the constitution of a

guarantee by the creditor, sufficient to answer for restitutions and

repairs (see art. 238, para 2 CCLAP).


Auctioning the seized property

The procedure is preceded by a request by the debtor to the court

baillif to conduct a compulsory execution when 30 days expire

without any agreement between the parties

A statement of seizure is made by the court bailiff in 10 working

days showing the inventory, types, nature of the property to be

auctioned and the statement is published on the database of

enforcement of judgement

The court bailiff proceeds to seeking for an Expert to make a

valuation of the property within 15 days

The report is submitted to both parties with a copy to the

Executive Secretary of the cell where the property is located

The report is also published on the Data Base of the enforcement

of judgments


Both parties have right to contest the valuation by opposing

another expert and when the dispute arises the bailiff

considers the average of both valuers

Publication of the public auction art 253 CCLAP

A notice of public auction is published with 48 hours after the

approval by the bailiff of the value of the property to be auctioned

The notice shows the identity of the owner, the creditor , the

purpose of the auction, the location of the property the date and

time of the auction

It is published on DJE with a photo and title of the property

subject to public auction a copy is given to the owner of the

property , the creditor, the executive secretary of the cell where

the property is located and announced on radio, television and a

newspaper operating in Rwanda


If the public auction concerns the immovable property the

notice is made at its location

The auction takes place 5 days after its publication

Auction modalities see art 255 CLAPP

The parties have right to decline the prices twice if the price

offered does not attain 75% of the reference value of the

property

At the third round the auctioned price is given to the bidder

who offers the highest price

A Ministerial order of the Minister of justice determines the

modalities of using DJE and its substitute in the electronic

system fails

The auction can be postponed by a bailiff through a report

that include the reason thereof see art 256 CCLAPWednesday, 02 January 201970

It also shows the date for the new auction and published on

DJE . The new auction is conducted within 7 days from the

date of adjournment

In case of several immovable properties or several parts of

an immovable property that may be sold in piece, the debtor

has right to indicate the order in which the assets will be sold

art 257 para 1

The auction is closed after getting enough money to cover

the debt and the expenses for the execution

When auction is made on a property subject to lease for

unspecified duration, the buyer of the property and the

debtor whose debt is to be paid through that property may

request cancellation through summary procedure art 258

para1


The lease made after the statement of seizure of the property

is void

It is prohibited to seize a house of a destitute or ¼ of one

hectare surrounding the land and necessary for the survival of

the distrainee to avoid putting him/her in a situation of

dependency on the community unless it is proven that he/she

can find another or a farmland

The prohibition does not apply to the property given in

security art 259 CCLAP in fine

The auction may be stayed for the following reasons: see art

260 CCLAP

Disregard of laws relating to surety, seizure and publication

of auction


When the property to be auctioned belongs to the destitute

When there is a certain evidence that the property to be

auctioned does not belong to the debtor

These grounds apply to request the invalidation of the

auction that is to be done within 15 days from the date the

auction was conducted as a summary procedure

The suspension or invalidation basing on the decision of the

Registrar General is requested to him/her and the response

is given in 3 working days

In case a party is not satisfied by the decision he/she may file

a claim to the commercial court within 5 days after being

notified of the decision

The bailiff issues the deed of auction and the original is given


To the successful purchaser upon proof of payment and can

register the property on his name after showing the deed to

the competent authority

The payment is made immediately or after 1 working day of

the auction

The bailiff proceeds to the payment through the bank account

of the creditor or the one determined by the Minister of

Justice

All expenses made since the beginning of the auction are paid

by the owner of the auctioned property and are deducted

from the amount obtained from the auction

The order to be followed in payment is stated in art 262

CCLAP


(1) Public treasury

(2) costs of activities performed

(3) remuneration of the bailiff

(4) the creditor

(5) other creditors with enforcement orders and declared

themselves as such before the closure of the auction

(6) the property’s owner if any money is left


Chapter 19. Enforcement against public entities

Direct coercive means

Judgments in pecuniary matter (article 183 CCLAP)

They are enforceable in 6 months since the judgement’s

notification.

If necessary funds are not available, they are planned for the

following financial year, and payment is carried out in the 6

months of this new exercise (see para. 2 of art. 183 above

mentioned)


Decisions not being pecuniary

It is the case of an administrative decision having been

cancelled for abuse of power by the judge: this cancellation

often produces by itself the expected effect (for example, the

shattering of the measure).

However, cancellation decided by the judge can, for some

cases, have full effect only if the Administration takes a positive

measure.

The administrative judge can give injunctions to the

Administration;

… for example, in addition to cancelling the administrative

decision of revocation, the judge can order the rehabilitation of

a civil servant irregularly revoked –


Means of pressure

Administrative fine penalty (article 181 to 184

CCLAP)

In accordance with articles 181 and 184 CCLAP, public

entities can be subjected to an administrative fine penalty in

case they fail to carry out an order enclosed in a judge’s

decision which has got force of res judicata.

The faulty administrative authority is summoned to appear

before the court, to explain him/herself to the judge:

… if the reasons are justified, a grace period can be granted.

… if the reasons are not valid, the judge fixes an

administrative fine penalty (see details above)


END


LAW OF PROCEDURES MODULE CCLAP ( Continued) · 2019. 1. 2. · OUTLINE 2 Wednesday, 02 January 2019...

Documents

Transcript of LAW OF PROCEDURES MODULE CCLAP ( Continued) · 2019. 1. 2. · OUTLINE 2 Wednesday, 02 January 2019...