The legal tussle between Inkundamahoro Ltd and Thomas et Piron over breach of a Rwf11 billion contract for construction of a commercial building in Kigali has gone to the Supreme Court.

Thomas et Piron, appealed to the Supreme Court following two earlier losses in the Commercial Court and the Commercial High Court.

The Belgian construction company wants the Supreme Court to quash the decision of the Commercial High Court that condemned it to pay Rwf55 million in damages to the claimant.

The same court also ordered Ecobank, the guarantor, to pay to the claimant the Rwf281 million performance bond deposited by Thomas et Piron. Inkundamahoro Ltd had requested Rwf13 billion in damages.

According to Jean Bosco Kazungu, Thomas et Piron’s lawyer, his client performed 86 per cent of the construction works and thus, Inkundamahoro should not be allowed to recover the whole performance guarantee while a big part of the work was done.

“Even though we contest the whole judgment, we strongly believe that Inkundamahoro Ltd can only be allowed to recover an amount of the guarantee that is proportional with the extent of the work remaining, meaning 14 per cent,” said the former president of the Rwanda Bar Association.

On their first appearance in the Supreme Court, lawyers of the two companies disagreed on the jurisdiction of the court to hear the case, with Inkundamahoro’s lawyer asking the three judge panel to dismiss it.

“This is the second degree of appeal, and the law provides that a case lost by a party to proceedings in the first and second instances basing on similar grounds shall not be appealed for to the Supreme Court” said Emmanuel Ngezahayo, Inkundamahoro’s legal counsel.

According to him the ground of the contractor’s loss in the first and second instances was a letter it wrote to Inkundamahoro Ltd saying it cannot continue with work since their accounts had been frozen by Rwanda Revenue Authority.

Mr Kazungu, challenges this line of thinking saying that judgements of the Commercial Court and that of the Commercial High Court are independent from one another and are different in nature.

The second point of contention was based on the amount of damage awarded in the judgement appealed against.

The Organic Law determining the organisation, functioning and jurisdiction of the Supreme Court limits the cases to the Supreme Court to only those involving a judgment in respect of which there was an award of damages of at least Rwf50 million.

Thomas et Piron’s lawyer told the court that this law unequivocally gives the Supreme Court power to hear this case since damages awarded in the judgement appealed against are more than Rwf55 million.

This is however contested by Inkundamahoro Ltd’s legal counsel who says that even if the awarded damages are more than Rwf55 million the amount was not decided by the judge but by the parties in their contract.

In a verdict set for January 13, 2017 the Supreme Court will only rule on the raised objection of lack of jurisdiction which will determine if it will go on to consider the merits of the case or not.