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Court of Cassation - Penal Division - Number: 115 /2006

Ruling Summary Record: The Court: Court of Cassation Circuit: Penal Division Number: 115Year: 2006Session Date: 3/20/2007

The Court Panel :Mubarak Bin Khaleefa Al-Eseery - Abdulla Bin Ahmed Al-Saadi - Abd AlRaouf Ahmed Al-Bekeey - Ibraheem Mohamed Al-Taweela - Nabil Ahmed Sadek -

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إنشاء قائمة تشغيل جديدة

إدخال اسم لقائمة التشغيل...

Session of 20 March of 2007

Personal Matters Cassation Petition no. 115 of 2006

(1) Cassation “Grounds of Appeal: ambiguous ground”.

The statement of appeal shall include the grounds of appeal otherwise the appeal shall be deemed null and void. Article 4/2 of Law No. 12 of 2005 regarding appeal by Cassation. The provisions thereof. It provides that grounds of Appeal shall be stated, indicated and defined and shall be given an unequivocal definition which reflect its intended meaning by vitiating any ambiguity and ignorance thereof, and shall state the defects of the appealed judgment and the Appellant position therefrom and the effects thereof. Lack of these requirements will render such appeal as unacceptable.

(2-4) The Trial Court’s Jurisdiction to analyzing and concluding, understanding the factual basis of the case and weighing the evidence thereof, and its jurisdiction to appoint Expert and evaluate Expert work.

2. The understanding of factual basis of the case, perusal and weighing of evidence and documents presented thereof, is preserved to the jurisdiction of the Trial Court. The condition thereof. Is to validly reason its judgment to be sufficient for its execution. And shall not be obliged to pursue all documents as submitted by litigants, but it shall explain the factual basis of its convictions and conclusion.

3. Request to appoint Expert. The Trial Court is not obliged to entertain such a request. Its condition. To find in the case document whichever sufficient to reach its conviction.

4. The Trial Court and its reliance on Expert Report submitted in another case. Its condition, to present copy of such Report and to be submitted to and to be included in the Case File.

1- The second paragraph of Article 4 of Law No. 12 of 2005, concerning appeal by Cassation, provides that the Statement of Appeal shall include the grounds of appeal otherwise such appeal will be null and void. By providing so, it means that, as always this court would conclude, grounds of Appeal shall be stated, indicated, defined and shall be given an unequivocal and conclusive definition which reflect its intended meaning which vitiates any ambiguity and any ignorance thereof, and shall state the defects of the appealed judgment, the Appellant position therefrom and the effects thereof. And whereas this is the case and whereas the Appellant does not explain or state the defect attributed to the appealed judgment as part of its grounds of appeal, and does not reveal the facets of its defense which was pleaded and argued in its Statement which was submitted to the Court of Appeal, further, Appellant does not specify the nature of documents that the appealed judgment has disregarded and failed to address as well as the defect attributed to the two Expert Reports that were submitted in the case, and the effect of such defect in the appealed judgment. And for these reasons, the appeal is regarded as lacking to specify its grounds and is ambiguous, and therefore is regarded as unacceptable.

2- It was decided in judgments rendered by this Court, that the Trial Judge has conclusive jurisdiction to understand the factual basis of the case, to examine evidence and documents presented therein, and to weigh evidence and draw conclusions on whatever it deems convincing therefrom, and the Judge is not obliged to entertain and respond to whatever is presented by the litigants, and it is only enough for the Judge to explain the basis of his convictions and shall base his conclusions and findings on valid reasons which will render such Judgment enforceable.

3- It is well decided in the Judgment of this court that expert appointment is not regarded as the absolute right of litigants, but rather, is regarded as permissible authority which was left to the sole discretion of the court to decide on. While exercising such discretion, the Court may reject litigants’ pleadings in connection with that matter, whenever it finds in documents of the case that which is sufficient for the court to reach its convictions.

4- It was decided in the doctrine of this Court that the Trial Court may rely on an Expert Report which was submitted in another case as long as a copy of such Report was presented and filed in the case file and as such became part of the case documents that are the subject of the litigants’ contentions in pursuing their proof.

Court:

After perusal of documents and hearing the report which was read by the presiding Judge of the hearing, pleadings and after deliberation, and whereas the appeal has satisfied the procedural formalities.

Whereas the facts, as shown from the appealed judgment and from other documents, can be summarised as that the Respondents have lodged against the Appellant and others case no. 397/2005 Inheritance and pleaded the court to issue a judgment, to oblige the latter to refund to the Respondents the amount of debt that Appellants have received from ….company which was known to the Appellant company which was all owned by their successor and it was devolved to the Respondents in accordance to consensual distribution of estate succession, under the understanding that whatever is received by the Appellant as money should be included in the estate succession and shall be distributed among the inherited in accordance to the share of each provided that the Appellant company shall be obliged to compensate them the amount of three hundred thousand Riyals for their lost profit and losses resulted by withholding their shares from the amount received by Appellant and deprive them from such share. And the Appellant instituted a derivative case against the Respondents and pleaded the Court to obliged them jointly to pay Appellant the amount of 85.317 Riyals, which represents the amount of their share of what Appellant suffered as expenses which was incurred while pursuing the litigations against the company……to collect the debt of the amount of 781,000 Riyals, which represents their share in bank interests of accrued debts, which is to be paid by the Appellant for the reasons that such interests accrued as a result of the delay in collecting the debt from company….which was caused by Appellant. And on 20^th of March 2006, the Court rendered its Judgment in favor of the Respondents in the Main Case and decided to dismiss the Derivative Suit. The Appellant has filed Appeal No. 114/2006 and on November 10^th 2006, the Court decided to overturn the appealed judgment on the part of judgment where it decided to oblige the Appellant to pay compensation and the judgment further decided to uphold the Appealed Judgment on matters other than this matter. The Appellant filed an appeal by cassation and whereas such appeal is presented before this Court in the Deliberation room and the Court scheduled hearing date to hear the same.

And whereas the appeal was based on four grounds, and whereas the Appellant has pleaded against the appealed judgment on its second part of the first and second reasoning as well as the second, third and fourth parts of third reason, that the appealed judgment violated and erroneously applied the law and to explain such contention, Appellant has stated that the appealed judgment has disregarded its pleading which was submitted in 11/6/2006, for the reason that such pleading was submitted after the expiry of the last day of the deadline given for submission even though such deadline will carry over to the next day and the deadline date is an official holiday. Also, the Appellant pleaded that the two Expert Reports of ( ….. and……), are Expert Reports from Experts of the Case even they were submitted as two documents of the case, and whereas, the Appealed Judgment has cited in its documents and minutes that the Court receiver has collected the debt from the company……,even though, such collection was made with the Appellant Company’s knowledge and that the Appealed Judgment has failed to examine and discuss the documents submitted by the Appellant which has an effect in the case and it failed to respond to the Appellant defence with regards to such documents, a fact that will make such Judgment defective and its overturning warranted. And whereas this ground is not plausible and unacceptable in light of the second paragraph of Article 4 of Law No. 12 of 2005 concerning Appeal by Cassation, which stipulates that the Statement of Appeal shall include the grounds upon which the Appeal is based, otherwise, it shall be deemed void, which intended by stipulating so, which is same to what this Court has always held, that grounds of Appeal shall be stated, indicated, defined and shall be given an unequivocal and conclusive definition which reflects its intended meaning which vitiates any ambiguity and any ignorance thereof, and shall state the defects of the appealed judgment, the Appellant’s position wherefrom and the effects thereof. And whereas this is the case, and the Appellant did not specify the reasons and grounds of its appeal and the defect attributed to the Appealed Judgment and its position and effects thereof.

And whereas this is the case and whereas the Appellant does not explain or state the defect attributed to the appeal judgment as part of its grounds of appeal, and does not reveal the facets of its defense which was pleaded and argued in its Statement which was submitted to the Court of Appeal. Further, the Appellant does not specify the nature of the documents that the appealed judgment has disregarded and failed to address as well as the defect attributed to the two Expert Reports that were submitted in the case, and the effect of such defect in the appealed judgment. And for that reason, the appeal is regarded as lacking to specify its grounds and is ambiguous, and therefore is regarded as unacceptable. And whereas the Appellant pleaded in the first part of the First Ground and the Second Part of the third ground and the first part of the fourth ground, that the appealed judgment lacks reasoning and voidance of inference and to explain that the Appellant has stated that it maintains a defense which can be summarised on that Appellant has incurred substantial expenses while pursuing the collection from the Company….., and such expenses shall be shared by the Respondents in proportionate to their shares thereof, and further, the Appellant maintains that such expenses shall be deducted from the claimed amount, but the Appealed Judgment has disregarded this defence, and as such the Appealed Judgment is rendered defective and shall be overturned. And whereas this pleading is rejected on the ground that it has always been the stand of this court that the Trial Judge has the absolute authority to hear the case and to understand facts of the case and to reach conclusions, and to examine documents submitted thereof, and to proportionate between such documents in reaching conviction therefrom. And in doing so, the Trial Judge is not obliged to respond to all documents submitted by litigants in so far as to clarify the truth which it finds as convincing and shall base its decision on plausible grounds which suffice to support such finding. And whereas this is the case and whereas the appealed judgment, which was upheld the First instance Judgment, has concluded, taking into consideration the Expert Accounting Report as submitted in the case documents, that the expenses of collecting the debts due to the inheritance have been deducted from the amount that was kept for that purpose, and whereas the conclusion reached by the appealed judgment in this matter is sound and has ground as evidenced by the documents, and therefore, the grounds of Appeal as pleaded by the Appellant are considered of not less than being arguments which fall under the discretion and jurisdiction of the Trial Court and shall not be invoked before this Court and as such is not acceptable.

And whereas, the Appellant pleaded in the second part of its fourth ground of appeal that the appealed judgment is prejudice to its right of defense, and to explain that, it stated that the appealed judgment has disregarded its request to the Court for appointment of an Expert in the case to undertake to verify the authenticity of documents as submitted therein, and for that reason it should be regarded as defective and should be overturned.

And whereas this ground of appeal is rejected for the reason that expert appointment is not regarded as the absolute right of litigants, but rather, is regarded as permissible authority which is left to the sole discretion of the court to decide on. While exercising such discretion, the Court can reject the litigants’ pleadings in connection with that matter, whenever it finds in documents of the case whatever is sufficient for the court to reach its convictions. And whereas its is permissible for the Trial Court to rely on an Expert’s Report which was submitted in another case as long as a copy of such Report was presented and filed in the case file and as such became part of the case documents that are the subject of the litigants’ contention in pursuing their prove.

Whereas the Court of Appeal has found in case documents , in accordance to aforementioned, whichever will suffice to allow such case to draw up and reach its conclusion that the expenses of collecting the debt from Company ….., was paid by the inheritance from the amount specified and kept for that purpose, and this conclusion shall not be considered defective by the fact that such judgment has disregarded to the Appellant’s request for appointment of an Expert in this matter, and as such, this pleading should be considered as no less than being arguments which falls under the discretionary jurisdiction of the Trial Court, which falls outside the jurisdiction of this Court, and therefore it shall be unacceptable.

Therefore, the Appeal is dismissed and the expenses thereof shall be paid by the Appellant. Further the Court ordered the guarantee bond to be confiscated.

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